Roets v Minister of Safety and Security and Another; Roets v National Director of Public Prosecutions (2015/54483, 2015/78694) [2017] ZAGPPHC 597 (12 September 2017)

IN THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA,

PRETORIA

Not reportable

CASE NO: 2015/54483

In the matter between -

HENDRIK ADRIAAN ROETS Applicant

And

MINISTER OF SAFETY AND SECURITY First

Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL Second

Respondent

DEVELOPMENT

CASE NO: 2015/78694

In the matter between:

HENDRIK ADRIAAN ROETS Applicant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Respondent

JUDGMENT

TSATSAWANE AJ

Introduction

1 The applicant instituted action proceedings against the respondents under Case Numbers: 2015/54483 and 2015/78694 for damages

allegedly suffered as a result of an alleged unlawful arrest and detention. In both cases, the respondents pleaded that the applicant

did not comply with the provisions of section 3(1) of the Institution of Legal Proceedings Against Certain Organs of the State Act 40 of 2002 (“the Act”).

2 The applicant conceded that he ought to have complied with the

provisions of section 3(1) of the Act and then brought the two applications which are before me for orders condoning such non-compliance. By agreement between the parties, the two applications were heard together and this judgment deals with both matters.

3 The action proceedings against the respondents were triggered by the applicant's alleged unlawful arrest and detention by members of the South African Police Service for which the Minister of Safety and Security (also referred to herein as the Minister of Police) is responsible.

The case against the Ministers

4 The applicant's case against the Minister of Police and the Minister

of Justice is based on an unlawful arrest and detention.

5 In his particulars of claim, the applicant says that:

5.1 he was arrested on 13 September 2012 without a warrant of arrest by members of the South African Police Service whilst visiting a client at his client's place of residence;

5.2 pursuant to the aforesaid arrest, he was charged with unlawful possession of drugs, a firearm and ammunition;

5.3 he was initially detained at Silverton Police Station and later transferred to Kameeldrift Police Station where he was detained until 17 September 2012;

5.4 he appeared in the Pretoria North Magistrate's Court on 17 September

2012 on which date his bail application was postponed to 21 September 2012 where after he was detained at New Lock Prison until 21 September 2012;

5.5 on 21 September 2012, his bail application was again postponed to 28 September 2012 and he was returned to New Lock Prison for further detention;

5.6 on 28 September 2012, his bail application was dismissed. Despite the dismissal of his bail application, his criminal trial did not

commence - it was postponed to 16 November 2012, according to him “for further investigation” ;

5.7 on 16 November 2012 the "State Prosecutor simply withdrew all criminal charges against me, due to a lack of evidence" and he was released from detention on that date.

6 In the case against the Ministers, the applicant says that he

complied with the provisions of section 3(1) of the Act in that he delivered the notice contemplated in that section . The letter upon which the applicant relies is dated 15 May 2013 and it would appear, from the date of receipt stamp thereon, that it was received by the Minister of Police on 16 May 2013. In this letter, the facts leading to the applicant's claim against the Minister of Police are set out together with an intention to sue if the matter is not resolved.

7 In his answering affidavit, the Minister of Justice says that a claim based on an alleged unlawful arrest and detention “arises from the date of the alleged unlawful arrest and detention.” The Minister of Justice further says that “he cannot be vicariously liable for acts of Public Prosecutors, Police and Magistrate.” In addition, the Minister of Justice says that the applicant's notice in terms of section 3(1) of the Act was delivered on 26 May 2015 “some 30 months after the cause of action has arisen” and that no reasonable explanation for this delay has been given.

8 The Minister of Police also contends that the applicant's debt arose from the date on which he was allegedly unlawfully arrested and detained on 13 September 2012 and that the alleged unlawful arrest and detention came to an end on 17 September 2012 when the applicant's bail application was postponed and that the detention

thereafter was in terms of an order of court for which the Minister of Police is not liable. The Minister of Police also takes issue with the applicant's failure to provide a reasonable explanation for the delay in delivering the notice contemplated in section 3(1) of the Act. According to the two Ministers, the explanation for the non-compliance should cover the entire period of the non-compliance from the date on which the applicant was allegedly unlawfully arrested and detained, i.e. from 13 September 2012 and not over cover the period from which he was released, i.e. 16 November 2012.

9 In the first place, the applicant contends that the debt "only became due as at date of my release from incarceration, being 16 November 2012. " On this basis, the applicant contends that his notice in terms of section 3(1) of the Act to the Minister of Police was delivered timeously. The applicant's contention in this regard is based on his view that the debt arose on 16 November 2012.

10 It is only in the event that it is found that the aforesaid notice

was not delivered timeously that the applicant seeks condonation. In this regard, his explanation for the delay, or good cause for the delay is set out in paragraph 20 of his founding affidavit and may be summarised as follows:

10.1 Upon his release in November 2012, he "acted promptly and without undue delay" and instructed his attorney to investigate the possibility of a claim against " the police and/or relevant entities". The applicant does not say as to exactly what was investigated and as to when the investigation was done.

10.2 He did not have "any knowledge of the relevant statutory requirements regarding the service of notice of proceedings within a period of six months from the date upon which my course of action arose. "

10.3 He assumed that his erstwhile legal representatives were going to ensure compliance with "any legislative requirements." The applicant does not

say if he actually instructed his erstwhile legal representatives to institute proceedings against the respondents pursuant to the investigation of possibilities to sue them; and if so, as to when he instructed them.

10.4 He only became aware of the requirements to deliver the section 3(1) notice from his "current attorney of record during March 2015" and that there was no compliance therewith.

10.5 He immediately instituted action against the Ministers upon " realisation of the deficiencies and difficulties presented" by the failure to comply with section 3(1) of the Act and "subsequently attended to the preparation of this application. " The applicant only instituted the action proceedings in 2012 and clearly not immediately after his release. He does not say as to why proceedings were not instituted earlier in circumstances where he seeks to create an impression that he acted promptly and without undue delay immediately after his release. This, in any event, is irrelevant for purposes of explaining the failure to comply with section 3(1) of the Act.

11 In response to the applicant's aforesaid averments, the Minister of Police says that-

11.1 The applicant, "as a former practising attorney is aware that ignorance of the law is not an excuse."

11.2 The applicant did not act prudently "by waiting for over a year in bringing this Application after he has instituted the action."

11.3 Good cause does not exist and the Minister of Police " will be unreasonably prejudiced' if condonation is granted. It was also contended in support of the prejudice point that even if the relevant docket is available, it "does not address the fading of human memory with time" and that the docket does not contain "some of the allegations which are in the particulars of claim."

The case against the National Director of Public Prosecutions

12 The applicant's case against the NDPP was also triggered by the alleged unlawful arrest and detention to which I have referred above. Accordingly, the facts relevant to the applicant's arrest, appearance in court and withdrawal of charges against him are the same as those outlined above. For this reason, it is not necessary to repeat them herein.

13 The applicant's case against the NDPP is based on his alleged

unlawful detention. In his particulars of claim in the action proceedings against the NDPP, the applicant says that the relevant

State Prosecutor " negligently failed to execute his prosecutorial duties" in the manner set out in paragraphs 7 and 8 of his particulars of claim.

14 In paragraphs 10, 11 and 12 of his particulars of claim in the action proceedings against the NDPP, the applicant says that:

"10. As a result of the State Prosecutor's negligence and breach of the legal duty of care, set out and contained in paragraphs 7 and 8 above, the Plaintiff was detained unlawfully from 17 September until 16 November 2012.

11. As a direct consequence of the Plaintiff's unlawful detention, the Plaintiff:

11.1 Suffered grave emotional distress and inconvenience

11.2 Was severely humiliated; and

11.3 Was gravely injured in his dignity and reputation.

12. As a further direct result of the Plaintiff's unlawful detention. the Plaintiff suffered damages in the sum of R1,230,000,00 ... " (my emphasis).

15 I note that in his case against the NDPP, the applicant says that the unlawful detention for which the NDPP is liable commenced on 17 September until 16 November 2012. This is the very same period for which the applicant also seeks to hold the two Ministers liable in his claim 2 under Case Number: 54483/2015.

16 The applicant did not deliver a notice in terms of section 3 of the Act to the NDPP. It is for this reason that the applicant seeks

condonation.

17 Insofar as the applicant's case against the NDPP is for unlawful detention, and not malicious prosecution, the NDPP contends that the applicant's debt arose

from the date of the unlawful detention, being 17 September 2012 and not 16 November 2012. Accordingly, the NDPP also contends that the date on which the notice in terms of section 3(1) of the Act ought to have been delivered must be determined with reference to the date of alleged unlawful detention and not the date on which the applicant was released from detention.

18 For purposes of condonation, and in particular, for purposes of satisfying the requirement that good cause exists for the failure to give the notice contemplated in section 3(1) of the Act, the applicant relies on the same facts set out in paragraph 20 of his

founding affidavit in the application for condonation against the two Ministers to which I have referred above. It is also not necessary to repeat such facts herein - they are contained in paragraph 22 of the applicant' s founding affidavit in the application against the NDPP.

Requirements for condonation

19 Section 3(4)(b) of the Act provides that the Court may grant condonation if it is satisfied that:

19.1 the debt has not been extinguished by prescription;

19.2 good cause exists for the failure by the creditor; and

19.3 the organ of State was not unreasonably prejudiced by the failure to comply with the provisions of section 3.

20

The question whether the applicant is entitled to condonation depends on

whether he has satisfied all of the abovementioned requirements. The respondents do not rely on prescription.

21 In terms of section 3(4) of the Act is that the Court has a discretion to grant or refuse condonation. In Minister of Safety and Security v De Witt [2008] ZASCA 103; 2009 (1) SA 457 (SCA) the Court said -

"[13] The discretion may only be exercised, however, if the three criteria ins 3(4)(b) are met: that the debit 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. The Minister does not rely on either of the latter two criteria in this appeal".

22 The three criteria must be satisfied before condonation is granted. The Court does not have a discretion to grant condonation if the three criteria are not met. It is trite that condonation cannot be had for the mere asking. The applicant for condonation must give a full and reasonable explanation to excuse the non- compliance. See Van Wyk v Unitas Hospital And Another [2007] ZACC 24; 2008 (2) SA 472 (CC); Van Abo v President of the Republic of South Africa 2009 (5) SA 345 (CC).

23 The first requirement with which the Court must be satisfied is that the creditor relies on an extant cause of action, i.e. that the creditor relies on a debt which has not yet been extinguished by prescription. Accordingly, if the debt has been extinguished by prescription, the Court ought not to grant condonation due to the fact that, in that event, there is no claim to pursue. The

respondents do not contend that the applicant's claim has been extinguished by prescription.

24 In Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA) the Supreme Court of Appeal held that -

"[16] The structure of s 3(4) is now such that the court must be satisfied that all three requirements have been met..." (my emphasis).

25 In the premises, if one of the requirements has not been satisfied, condonation is not competent. In Mandinda, the Court, relying on Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A), concluded that the applicant is required to furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about and to assess his conduct and motives.

26 In his founding affidavits, the applicant does not say as to exactly when he instructed his erstwhile attorneys " to investigate the possibility of a claim against the police and/or relevant entities" and the outcome of that "investigation." Of importance, the applicant does not say as to what advice his erstwhile attorneys gave him and when they gave him such advice. The applicant simply says that:

"Thereafter, I followed the advice of my erstwhile legal team whom I trusted to comply with any procedural requirements and to properly represent me in the investigation and pursuit of my claim." (my emphasis).

27 In addition, the applicant does not say as to what advice he "followed" because it is clear from paragraph 20.1 of his founding affidavit that he was given some advice and he himself says that he followed such advice. He simply does not tell the court as to when that advice was given and what that advice was. A reading of paragraph 20.1 of the applicant's founding affidavit suggests that he must have received such advice soon after his release because he says that he ''promptly and without undue delay upon my release instructed an attorney to investigate the possibility of a claim" but then he says nothing further to enable the Court to understand how the non-compliance came about and his role, if any, in relation thereto. This, however, did not result in compliance with section 3(1) of the Act and the Court does not know why.

28 The applicant does not say that his erstwhile attorneys delayed the investigation which he instructed them to conduct and as to during which period after his release he followed whatever advice they gave him. Even then, his explanation for the delay only relates

to the period after he was released from detention and does not relate to the period from the date of his detention, which is the

date on which the debt arose for purposes of section 3 of the Act.

29 Insofar as the applicant also seeks to rely on his alleged lack of knowledge of the requirements to deliver the notice in terms of section 3(1) of the Act and then seek to create an impression that his erstwhile attorneys failed him, this does not assist him. In Colyn v Tiger Food Industries 2003 (6) SA 1 (SCA) the Court held that there comes a point where there is no alternative but to make the client bear the consequences of the negligence of his attorneys. This is such a case due to the fact that:

29.1

the applicant does not say as to when exactly he received advice from his erstwhile attorneys (which he says he followed) and what advice he received;

29.2 the applicant does not say as to exactly why his erstwhile attorneys did not comply with section 3(1) of the Act;

29.3 the Court is left to speculate as to what exactly the applicant's erstwhile attorneys did or did not do to result in the non-compliance;

29.4 in most cases, court cases are conducted by attorneys and counsel and the lay clients do not always know procedural requirements which must be complied with for purposes of their claims. It cannot be correct that in each of such cases condonation must be granted every time that there is non­ compliance. In this case, the applicant has placed very sketchy information before the Court to enable the Court to understand as to exactly what role his erstwhile attorneys played or did not play which resulted in the non­ compliance.

30 The question as to when the debt arose is also relevant for purposes of condonation. This is due to the fact that the notice in terms of section 3(1) of the Act is required to be given within six months from the date on which the debt arose. For this reason, the explanation for the non-compliance must necessarily cover the entire period of the non-compliance; in this case, starting from the date of the alleged unlawful arrest and detention. The applicant's explanation does not satisfy this requirement, which means that it cannot be said to be a full explanation for the non-compliance.

31 The applicant's claim against the respondents is for unlawful arrest and detention. The applicant says that the debt arose upon his release from incarceration on 16 November 2016. I do not agree.

32 In Thompson and Another v Minister of Police and Another 1971 (1) SA 371 (E) at 375, the Court dealt with the question as to when a claim for damages for unlawful arrest arises. It also addressed the issue of when a claim for malicious prosecution arises.

33 In Thompson, and m relation to malicious prosecution, the Court said the following:

"In an action based on malicious prosecution it has been held that no action will lie until the criminal proceedings have terminated in favour of the plaintiff. This is so because one of the essential requisites of the action is proof of a want of reasonable and probable cause on the part of the defendant, and while a prosecution is actually pending its result cannot be allowed to be prejudged by the civil action ... The action therefore only arises after the criminal proceedings against the plaintiff have terminated in his favour or where the Attorney-General has declined to prosecute. To my mind the same principles must apply to an action based on malicious arrest and

detention where a prosecution ensues on such arrest, as happened in the present case. The proceedings from arrest to acquittal must be regarded as continuous, and no action for personal injury done to the accused person will arise until the prosecution has been determined by his discharge ..."

34 The aforesaid quoted paragraph clearly relates to where a plaintiff’s claim is one of malicious prosecution. This paragraph shows that it is the claim of malicious prosecution which arises from the date on which charges are withdrawn. The same applies to malicious arrest. The applicant's case is not one of malicious prosecution or malicious arrest.

35 In Thompson, the Court continued to deal with the situation as far as wrongful arrest is concerned. It said:

"In the main claim based on wrongful arrest however the position is different. There the delict is committed by the illegal arrest of the plaintiff without the due process of the law. Improper motive or want of reasonable and probable cause required for malicious [prosecution] have no legal relevance to this cause of action. It is also irrelevant whether any prosecution ensues subsequent to the arrest; and even if it does, what the outcome of that prosecution is. The injury lies in the arrest without legal justification, and the cause of action arises as soon as that illegal arrest has been made. In the present case, therefore, the cause of action in the main claims arose on 10th April, 1967. In terms of the stated case I am asked to assume not only that the arrest was wrongful, but also that in effecting the arrest Hansen was acting in pursuance of the Police Act. That being so, sec. 32 of Act 7 of 1958 applies and it is clear that this section has not been complied with in as much as both the notice given to the defendants and the subsequent issue of summons were outside the periods prescribed by that section. Plaintiff's actions against first and second defendants for wrongful arrest are therefore out of time and cannot be entertained. This is the only course of action preferred against the first defendant, and, in the light of the conclusions of which I have come, it follows that both the plaintiff's actions against the first defendant must be dismissed with costs, which costs include the first defendant's costs in this proceeding..." (my emphasis).

36 In Minister of Safety and Security v Sekotho and Another 2011 (l) SACR 315(A) at 42 the Supreme Court of Appeal held that:

"While it is clearly established that the power to arrest may be exercised only for the purpose of bringing the suspect to justice, the arrest is only one step in that process. Once an arrest has been effected, a peace officer must bring that arrestee before a Court as soon as reasonable possible and at least within 48 hours, depending on Court hours. Once that has been done. the authority to detain. that is inherent in the power to arrest is exhausted The authority to detain the suspect further is then with the discretion of the Court."

37 In the premises, and in the light of the above quoted authorities, it follows that the applicant's debt arose on 13 September 2012 when he was arrested and detained. It is common cause that the applicant did not deliver to any of the respondents a notice in terms of section 3(1) of the Act within six months from that date, i.e. 13 September 2012. This being the case, it follows that in order to be granted condonation for this non-compliance, the applicant ought to have given a full and reasonable explanation for his failure to deliver the notice contemplated in section 3(1) of the Act which covers the entire period from 13 September 2012. The applicant did not do so due to the fact that he proceeded on the basis that the debt which is the subject of his claims against the respondent arose upon his release from incarceration. This is wrong.

38 In my view, and in the light of what the applicant does not say in paragraphs 20 and 22 of his founding affidavits, the applicant has failed to give a full and reasonable explanation for his non-compliance with section 3(1) of the Act to enable the Court to

understand as to how the non-compliance came about and his motives and role in relation thereto.

39 I am also of the view that the following factors work against the applicant:

39.1 The applications for condonation were only filed in August 2016 despite the fact that the founding affidavits were signed on 11 and 25 May 2016 respectively and no explanation for this delay was given. There is no reason given as to why these applications were not instituted as soon as the respondents objected to being sued without compliance with the provisions of section 3 of the Act.

39.2 The fact that the applicant signed the founding affidavits May 2016 clearly indicates that he accepted, at least as on that date, that condonation was required yet he failed to file the necessary application as soon as possible thereafter, thereby unnecessarily

delaying the determination of these applications. Condonation is required to be sought as soon as the need for it arises. There is no explanation for this delay.

39.3 The action proceedings were instituted in July 2015 and the section 3(1) point was raised by the respondents in their Special Pleas dated October 2015 and no explanation has been given as to why these applications were not brought earlier than August 2016.

39.4 The respondents say that they will suffer prejudice if condonation is granted in that the human memory of their witnesses is liable to fail them and that even though the relevant docket may still be available, there are facts upon which the applicant relies which are not contained in the docket. This obviously is relevant for purposes of the trial but it is an issue which the Court ought to take into account in that it suggests that the respondents have not been able to reconstruct the docket and will most probably not be able to do so for purposes of their trial preparation (due to the time that has now lapsed since the alleged arrest and detention) in order to meet the applicant's case at the trial.

40 In the circumstances, the applicant has failed to make out a proper case for the relief which he seeks against the respondents and the application ought to be dismissed with costs.

41 In the premises, I make the following order:

41.1 The two applications are dismissed.

41.2 The costs of the two applications shall be paid by the applicant.

______________________

Kennedy Tsatsawane

Acting Judge of the Gauteng Division of the High Court of South Africa, Pretoria

12 September 2017