---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)      NOT REPORTABLE

(2)      NOT OF INTEREST TO OTHER JUDGES

(3)      REVISED.

CASE NO: 59087/2013

27/6/2018

 

In the matter between:

 

LANGSTONEREXSOM GUMBI                                                                                  Applicant

 

And

 

MINISTER OF SAFETY AND SECURITY                                                                  Respondent

 

JUDGMENT

RAULINGA J

1.          This is an application for condonation by the applicant for the late filing of the notice as contemplated in section 3(1) (a) of Act 40 of 2002, the Institution of Legal Proceedings Against Certain Organs of State Act (" the Act" ).

2.         The action instituted by the applicant against the respondent emanates from the wrongful arrest of the applicant on 30 January 2008 without a warrant and charged for robbery with aggravating circumstances. Thereafter the applicant was detained at the Douglasdale Police Station under case number 683/ 10/ 2007. He was detained at the instance of the respondent for a period of two years and six months in custody until his trial was concluded on 22 July 2010 when he was acquitted on all charges laid against him.

3.         Summons commencing action under case number 47601/13 was issued on 28 June 2013 and served on the respondent on 14 May 2014. This was after three years had lapsed after the release of the applicant from detention .

4.         The applicant contends that as a layman he was not aware of any time limits applicable in instituting a claim for damages and further due to the 16 months of being detained he was left out of pocket. Further, that the required notice was served on the respondent on or about 28 February 2012, which notification was almost 13 months late for which the applicant has given a reasonable explanation .

5.          To the contrary, the respondent avers that the applicant has failed to comply with section 11(d) of the Prescription Act, No 68 of 1969 as his claim has prescribed. Further, that the applicant has no prospect of success on the basis that his claim has prescribed and that he was tried by a Court of law as there was a prima facie against him .

6.

6.1       In terms of section 3(1) of the Act, no legal proceedings for recovery of 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 the 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).

6.2         In terms of section 3(2) of the Act, 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 credit or.

 

6.3       Section 3(4) (a) of the Act provides that if an organ of state relies on the 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.

7.          In terms of section 3(4) (b) of the Act, the court may grant 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 .

8.          In casu, the organ of state being the respondent did not consent in writing to the institution of the legal proceedings. However, the creditor i.e. the applicant gave the respondent notice which was out of time by some 13 months. Therefore the applicant has failed to give notice to the respondent within six months on which the debt became due.

9.         It therefore behoves me to only deal with the requirements pertaining to the application for condonation in terms of the applicable law.

10.       It is the respondent's submission that the applicant's alleged cause of action against the respondent arose on 30 January 2008, the date on which he was arrested without a warrant whilst it is the submission of the applicant that it only commences on 22 July 2010.

11.        In support of its contention, the applicant relies on dicta in Makhwelo v Minister of Safety and Security[1], in which it was inter alia stated in para 61:

"... in the present case more than a year lapsed between the two relevant dates, which in the present case may raise an important policy consideration on which I need not decide. A lengthy delay in not bringing the suspect to trial but have him languish in prison until eventually released without being required to plead offends an individual's right to be brought before a criminal court and have his trial commence within reasonable time. It may therefore not be a factor upon which the state ought to be entitled to rely.”

 

12.        In my view, the distinction between Makhwelo and the present matter is that in Makhwelo the applicant was arrested and detained for over a year when charges were withdrawn and he was released. In the present matter, the applicant was arrested and detained on 30 January 2008 and was released on 22 July 2010 after he was charged, tried and acquitted. It can never be that all accused who are arrested, tried and acquitted will claim successfully for wrongful arrest and detention.

13.       As the Court in Makhwelo correctly states in paragraph 56 of its judgment:

 

"... An aspect of the deprivation of liberty and the wrong deprivation of liberty by the police is inextricably dependant on it being shown that the arresting officer could not have formed a reasonable suspicion that an offence had been or was going to be committed."

 

14.        In casu, the respondent states in its answering affidavit that the members of the South African Police Service had a reasonable suspicion that the applicant had committed a schedule 1 offence, to wit robbery. In his founding affidavit the applicant merely states that he was arrested and detained until his trial was concluded on 22 July 2010 when he was acquitted on all charges laid against him. Further , according to the respondent as stated in the answering affidavit, the applicant was released on 22 July applicant does not dispute the content of this factual matrix.

15.        The applicant does not deal with the requirement that the arresting officer had a reasonable suspicion that he had committed a schedule 1 offence. Nor does he inform the Court the circumstances under which he was arrested and detained . In the circumstances one is left in the dark in why he does not deal with this aspect. As already stated above in this judgment, the deprivation of liberty and wrongful deprivation of liberty by the police is inextricably dependant on it being shown that the arresting officer could have formed a reasonable suspicion that an offence had been or was going to be committed.

16.       In Minister of Agriculture and Land Affairs v C.J. Rance (Pty) Ltd[2] , the Court said the following:

"As can be seen, section 3(4) (b) circumscribes a Court's power by requiring that it be satisfied that:

(i)        The debt has not extinguished by prescription;

(ii)       Good cause exists for the failure by the creditor i.e. to serve the statutory notice according to section 3(2) (a) or serve a notice that complies with the prescripts of section 3(2) (b) and

(iii)       The organ of state was not unreasonably prejudiced by the failure. These requirements are conjunctive and must be established by the applicant for condonation."

17.       In my view, the explanation for the default is not sufficient to enable me to understand how it really came about and assess the conduct and motives. This, because the applicant says it was his intention at all material times, to claim damages from the respondent for what he believed was the gross violation of his Constitutional rights. right s. However, he contradicts this by stating that he is a layman as far as the law is concerned and was not aware of any law compelling him to give the respondent notice. This coupled with the fact that he only gave notice some 13 months after the lapse of 6 months, is unacceptable.

18.        As the respondent correctly submits, it is common cause that the applicant was arrested on 30 January 2008 and was released on 22 July 2010 after he was acquitted and the summons commencing action was only served on 14 May 2014, more than 3 years after the date on which the cause of action arose.

19.        In the matter of Minister of Safety and Security v Sekhoto and another[3], the Court observed 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 had been effected the peace officer must bring the arrestee before court as soon as reasonably possible and at least within 48 hours (depending on the court hours). Once that has been done, the authority to detain that is inherent in the power to arrest has been exhausted. The authority to detain the suspect further is within the discretion of the Court."

 

20.       It is clear in casu that only the Minister of Safety and Security has been cited, whereas the prosecution and court are not. In the circumstances, the applicant's claim has been extinguished by prescript ion.

21.        The alleged arrest and detention occurred on 30 January 2008, after G and D Bank in Monte Casino was robbed by armed robbers. The applicant was identified as the driver of the vehicle which was used to reserve parking space for the other suspects in the alleged armed robbery. In my view with all this information available to them, they formed reasonable suspicion and therefore the arrest and detention of the applicant was lawful.

22.        The respondent will suffer prejudice in that, the witnesses for the State might have disappeared, important documents may not be traceable and some of the witnesses might have forgotten the chain of events of the incident .

23.        Based on the above reasons, the application must be dismissed.

24.        In the event, the application is dismissed with costs.

 

 

TJ RAULINGA

JUDGE OF THE GAUTENG HIGH COURT

DIVISION

 

APPEARANCES

For Applicant:       Adv. G.J. van Niekerk

Instructed by:        Mkhabela Attorneys

For Respondent:   

Instructed by:         State Attorney

---