Radebe v Minister of Police and Another (16581/2012) [2019] ZAGPPHC 1014 (18 December 2019)

IN THE HIGH COURT OF SOUTH AFRICA

[GAUTENG DIVISION, PRETORIA]

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

CASE NUMBER: 16581/2012

18/2/2019

In the matter between:

BRIAN RADEBE

APPLICANT

and

THE MINISTER OF POLICE

FIRST RESPONDENT

NATIONAL DIRECTOR OF PUBLIC PROSECUTION

SECOND RESPONDENT

JUDGMENT

A.J. LOUWAJ

[1] The Applicant applies for condonation in terms of section 3(4Xa) of the Institution of Legal Proceedings against certain Organs of State Act 14 of 2002 (hereinafter "Act 40 of 2002"). This application is brought against the First Respondent only. The relief sought is condonation for the late notification of his intention to institute legal action against the First Respondent, an order that the First Respondent pay the costs of the application in the event of opposition and alternative relief.

[2] Despite the fact that the application is brought only against the First Respondent both Respondents filed an intention to defend and both oppose the application.

[3] The application arises from the facts that are set forth hereunder.

[4] The Applicant is a male police officer. The Applicant was arrested on the 5th April 2009. The arrest occurred at the Booysens Police Station. The Applicant was arrested for alleged charges of corruption. He was detained at the Booysens Police Station on the said charges of corruption until the 6th April 2009 when he was released on bail of R3 000.00 in the Magistrates' Court.

[5] The Applicant furthermore alleges that on the 5th April 2009 the members of the South African Police Service set the law maliciously and wrongfully in motion by arresting him and

charging him with the offence of corruption and the said SAPS members and the Second Respondent continued to prosecute the Applicant on the purportedly false charges.

[6] On the 20th October 2011 the matter was struck from the roll in terms of section 174 of the Criminal Procedure Act.

[7] The abovementioned facts are not in dispute. The Respondents dispute that the arrest was not within the ambit of the law and justifiable and say that the charges against the Applicant were not false and his discharge does not mean that the arrest was wrongful nor that the prosecution was malicious. These are however all matters that can be dealt with in a trial on the merits of the matter.

[8] The Applicant says that he was advised that the arrest was unlawful as the relevant arresting officers were not empowered to arrest him without a warrant of arrest and none of the circumstances under section 40 of the Criminal Procedure Act 51 of 1977 were present. These allegations are not directly contradicted by the Respondents. He alleges that the charges were wrongful and malicious and that there were no reasonable or probable cause for arresting and prosecuting him. He says the prospects of success are extremely good. This is disputed.

[9] However, the Applicant says that as a lay person he did not know that he might be entitled to claim damages from the First and Second Respondents as a result of the unlawful arrest, detention and malicious prosecution. It was only during December 2011 that he was informed by relatives that he might be able to institute a claim. He immediately contacted his attorneys of record who confirmed the advice.

[10] The notice under section 3 of Act 40 of 2002 indeed followed shortly thereafter, namely it is dated the 2nd February 2012 and was delivered by hand to the First Respondent on the 3rd February 2012.

[11] It will be evident that insofar as the malicious prosecution claim is concerned, the section 3 notice under Act 40 of 2002 was timeous, namely within 6 months after the criminal prosecution terminated with his discharge under section 174.

[12] Accordingly as regards the malicious prosecution claim, the Applicant complied with the provisions of Act 40 of 2002 regarding notice of his claim to the Respondents.

[13] It is only as regards his claim for unlawful arrest that the notice does not comply with the provisions of section 3 of Act 40 of 2002.

[14] The late notice is disputed in paragraph 8 of the answering affidavit on the basis that severe prejudice was caused to the Respondents. It must however be noted that the lack of timeous notice is limited to the claim against the First Respondent. It is alleged that the Respondents are prejudiced "because witnesses may not be traced for the purpose of litigation".

[15] It must be pointed out here that an allegation, similar to one would make in a pleading, is made as regards the possible absence of witnesses. No evidence to prove the allegation that witnesses may not be traced for purposes of the litigation is presented by the Respondents in the answering affidavit. This allegation, without any supporting evidence, simply cannot constitute unreasonable prejudice as referred to in section 3 of Act 2 of 2002. Secondly the allegation is made that witnesses may have problems recollecting the event and producing general evidence of the case due to the purportedly unreasonable protracted delay. Again these are generalised statements that are not supported by any evidence.

[16] No instances of real prejudice arising from the delay to give notice is referred to in evidence in the answering affidavit.

[17] Section 3(1) of Act 40 of 2002 says that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the organ of state in question notice in writing of his or her intention to institute the legal proceedings in question or if the organ of state in question has consented in writing to the institution of that legal proceedings without such notice or upon receipt of a notice which does not comply with the requirements of subsection 2.

[18] Subsection 2 of section 3 then says that notice must be given within 6 months from the date on which the debt became due and must briefly set out the facts giving rise to the debt and such particulars of the debt as are within the knowledge of the creditor.

[19] Section 3(4) then says that if an organ of state relies on a creditor's failure to serve a notice as envisaged by subsection 2(a) the creditor may apply to a court having jurisdiction for condonation of such failure. Section 3(4)(b) then says that the court may grant and application for condonation 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.

Subsection (c) of section 3(4) then says that if an application is granted the court may grant leave to institute the legal proceedings in question on such conditions regarding notice to the organ of state as the court deem appropriate.

[20] From the exposition above it is clear that the cause of action arose, apart from knowledge of the existence of the cause of action on the part of the Applicant, on the 5th April 2009.

[21] Section 3(3) of Act 40 of 2002 makes provision for the fact that 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 could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him from acquiring the required knowledge.

[22] The issue of prescription does not arise as the notice was received by the First Respondent on the 3rd February 2012, well two months before the three year period of prescription under the Prescription Act 68 of 1969 would have resulted in prescription of the claim. The claim namely, if not timeously instituted, have expired at midnight on the 4th April 2012. The notice, as stated, was given on the 3rd February 2012 and summons was served on the First Respondent on the 28th March 2012.

[23] Paragraph 5.4 of the founding affidavit alleges that the Respondents' plea is attached to the application as Annexure "E". I however cannot find such a document in the papers. Nothing, however turns on this issue.

[24] The Respondents disputed the notice on grounds thereof that the Applicant did not comply with section 3(2)(a) of Act 40 of 2002 in that the notice was not served on the First Respondent within 6 months from the date on which the debt became due, clearly referring to the 5th April 2009.

[25] It is clear and I also so find, that the notice was given timeously before the claim could be extinguished by prescription. Therefore the first requirement under section 3(4)(bXi) of Act 40 of 2002 was complied with.

[26] It is to be noted that it is common cause that the claim did not prescribe.

[27] The two issues that are the bone of contention between the parties are whether good cause exists for the failure to timeously notify the First Respondent and whether the First Respondent was unreasonably prejudiced by the failure to give timeous notice.

[28] I have already discussed the facts as regards prejudice and as already explained, there is no evidence of any nature that serve to prove prejudice on the part of the First Respondent. Certainly no unreasonable prejudice arose for the First Respondent from the non-timeous notice.

[29] In this regard I point out that in Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA) at 320H - J in par 21 Heher JA found that although the onus is on an applicant to bring the application within the terms of the statute, a court should be slow to presume prejudice for which the respondent itself does not lay a basis.

[30] I accordingly find that there was no unreasonable prejudice to the First Respondent arising from the fact that the notice was not given within 6 months from the date on which the incident arose. In this regard it must be noted that the date referred to in this regard is the 5th April 2009.

[31] The only question that remains is whether good cause exists for the failure of the creditor.

[32] Good cause has been the subject of many cases and, as is explained by Heher, JA in Madinda. supra at page 316E - Fin paragraph 10 it looks at those factors which bear on the fairness of granting the relief as between the parties and as affecting the proper administration justice. In any given factual complex it may be that only some of many such possible factors become relevant. These may include prospects of success in the proposed action, the reasons for the delay, the sufficiency of the explanation proffered, the bona fides of the applicant and any contribution by other persons or parties to the delay and the applicant's responsibility therefore.

[33] It must also be noted that the requirement of section 3(4)(b) of Act 40 of 2002 is that the court must be "satisfied" which has long been recognised as setting a standard which is not proof on a balance of probability. It is rather the overall impression made on a court which brings a fair mind to the facts set up by the parties. See: Madinda. supra at 316D - Din par 8.

[34] There is no indication that the application is not bona fide. The explanation is satisfactory and is based on the fact that the Applicant is a lay person who did not know of his rights until December 2011. He very shortly thereafter acted in order to give notice and to institute the action under the abovementioned case number.

[35] The criminal proceedings terminated in favour of the Applicant and despite the contrary allegations by the Respondents, I see no reason not to find that there are prospects of success for the Applicant.

[36] In the circumstances I am of the opinion that the relief sought must be granted.

[37] The question that remains is the question of costs.

[38] It must be pointed out that the Applicant is approaching the court cap in hand to ask for condonation. In those circumstances a litigant is ordinarily liable for the costs of the application. The Applicant clearly foresaw that ordinarily he would be liable for the costs of the application and only prayed for costs against the First Respondent should the application be opposed.

[39] The Respondents opposed the application on generalised grounds without any particularity and did not substantially contribute to the determination of whether condonation should be granted or not. In the circumstances I am of the opinion that the opposition was unnecessary. If the Respondents left the matter on the basis that the Applicant bring his application for condonation without filing opposing papers, the correct order would have been to grant the unopposed costs of the application in favour of the Respondents.

However, in the circumstances it was opposed, opposing affidavits were filed and in the circumstances I see no reason why the Applicant

ought not to be entitled to the opposed costs of the application. After all the Respondents were clearly informed that that would be the result if they do not oppose. I refer in this regard to paragraph 2 of the notice of motion.

[40] In the circumstances it needs to be pointed out that both Respondents opposed the application. Costs in the prayers are only sought against the First Respondent. I will accordingly grant the opposed costs of the application against the First Respondent.

[41] In the premises the following order is made:

1. Condonation is granted to the Applicant for the late notification of his intention to institute legal proceedings against the First Respondent in terms of section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State, Act 40 of 2002;

2. The First Respondent is ordered to pay the opposed costs of the application on party and party scale.

AJ LOUW AJ