IN THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFIUCA, PRETORIA

NOT REPORTABLE

CASE NO:2015/54483

In the matter between -

HENDRIK ADRIAAN ROETS	Applicant

And

Applicant

MINISTER OF SAFETY AND SECURITY	First Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL
 DEVELOPMENT	Second Respondent

And

In the matter between:	CASE NO: 2015/78694

HENDRIK ADRIAAN ROETS	Applicant

And

NATIONAL DIRECTOR OF PUBLIC" PROSECUTIONS	Respondent

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

TSATSAWANE A,J

Introduction

This is an application for leave to appeal against my judgment in which I dismissed the applicant's application for condonation.

2	By agreement between the parties the two applications for condonation were heard together. One application for leave to appeal was delivered in respect of both applications and was heard as one application. This is convenient for the Court and the parties.

The judgment

3	i delivered one judgmcnt which dealt with both applications for condonation.

4	In his action proceedings, the applicant claims damages against the respondents for damages allegedly suffered as a result of an alleged unlawful arrest and detention. The respondents objected to being sued without the applicant having complied 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"). It is as a result of this objection that the applicant brought the applications for condonation.

5	In my judgment, I concluded that the applicant has failed lo provide a full and reasonable explanation for his non-compliance with the provisions of section 3(1) of the Act. Of importance, I concluded that the applicant's debt arose from the date on which he was allegedly unlawfully arrested and detained and not from the dale on which he was released from the alleged unlawful detention.

6	In paragraphs 30, 37 and 38 of the judgment, 1 said:

"30	The question as to when the debt arose is also relevant for purposes of condonaho11. This is so due to the fact that the notice in terms of section 3(1) of the Act is required to be given withlin six months from the date on which the deb/ arose. For this reason, the explanation.for the non-compliance 11111st necessarily cover the entire period of the non-compliance: in this case, starting from the date of the alleged unlawful arrest and detention. 111e applicant :r; explanation does not ·satisfy this requirement, which means that it cannot be said to be a full explanation.for the non-compliance.

37	In the premises . and in the light of the above quoted authoriaes, ii 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 oft he respondents a notice in terms of section 3(1) of the Act within six months from that dare. 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 fit!! and reasonable explanation for his failure lo deliver the notice contemplated in section 3(1) of the Act which covers the entire   period from J 3 September 2012. The applicant did not do so d11e 10 the fact that he proceeded on the basis that the debt which is the subject of his claims aiainst the respondents arose upon his release from incarceration. This is wrong.

38	ln my view, and in the light <f what the applicant does not say in paragraphs 20 and 22 of his founding affidavits. the applicant has failed to give a .fill  and reasonable explanation for his non-compliance with section 3(1) of the Act lo enable the Court to understand as to how the non-compliance cwne about and his motires and role in relation thereto .·•

7	The above quoted paragraphs clearly indicate the basis on which I found against the applicant.

The application for leave to appeal

8	The application for leave to appeal is based on numerous grounds set out in the notice of application for leave to appeal and they were argued before me at the hearing of this application.

9	Mr. Du Plessis who appeared on behalf of the applicant and Mr. Tshivhase who appeared on behalf of the respondents filed comprehensive heads of argument in suppo1t of their respective cases. I am indebted to them for their assistance in this regard.

10	In terms of section 17(1) of the Superior Courts Act JO of 2013, I must grant leave to appeal if I am of the opinion, amongest others, that the appeal would have a reasonable prospect of success.

11	The application for leave to appeal is based on the fact that i erred in various respects described in the notice of application for leave to appeal ·- it is not based on the other grounds set out in section 17(1), i.e. that there is some other compelling reason why an appeal should be heard such as conflicting judgments on the matter under consideration .

12	The applicant docs not seek leave to appeal against my finding that the debt which is the subject of' his claims arose from the dale on which he was allegedly unlawfully arrested and detained and nol from tbe date on which he was released from detention. The relevance of this is that the explanation for the non­ cornpl iancc must cover the entire period from the date of the alleged unlawful arrest and detention and not only from the date on which the applicant was released from detention.

13	In my view, the applicant' s general grounds of appeal to tl1e effected that the "learned judge erred in finding that the applicant did not comply with the provisions of section 3(1) ..." and that·leamed judge erred in .finding that the appUcanl failed to.furnish a full and reasonable explanation for the delay ...'' do not relate to the finding that the date on which the debt arose is the date on which the applicant was allegedly unlawfully arrested and detained. If this finding is not challenged. there is no prospect that lhe appeal would succeed.

14	In patiicular, the applicanl docs not seek leave to appeal against the finding that his explanation for the non-compliance had to cover the entire period of non­ compliance from the date of the alleged unlawful arrest and detention and that bis explanation docs not cover that entire period.

15	The fact that the applicant docs not seek leave to appeal against the aforesaid findings means that such findings will remain ,md if they do remain. as they should remain because leave to appeal is not sought against them, the appeal would not have a reasonable prospect of success.

16	I was referred to I urnbull-Jackson v Hibiscus Coast MLmicipality And Others f.014.1§) SA 592 (CC) in support of the contention that I erred in holding the applicant responsible for the failure of his erstwhile attorneys to deliver the
notice in terms of section 3(1) of Lhc Act. Reliance on Turnbull-Jackson is misplaced due to the fact that therein, the Court actually found that the "applicant 11-•as vi i/anl'' and it is as a result of this finding that the Court concluded that the applicant's counsel's "unsati!.foctoJJI explanation cannvl be imputed 10 him." In this case, the applicant was not vigilant and does not seek leave to appeal against my finiling in paragraph 29.4 of the judgment to the effect that:

"29.4 ... In this case, the applicant has placed ve1J1 sketchy ir!formation before the Court lo enable the Court lo understand as lo exactly what role his erstwhile attorneys played or d;d not play which resulted in the no11-compliance.''

17 The correct legal position is that an applicant for condonation must provide a full and reasonable explanation which covers the entire period or the delay. This was not done in this case and the applicant does not seek leave lo appeal against my finding to the effect the explanation had lo cover the entire period from the date of the alleged unlawful arrest and detention and that he provided sketchy infonna1ion as to exactly what role his erstwhile attorneys played which resulted in his non-compliance.

18	in the premises, without the applicant having provided: (a) a Ji1Jl and reasonable explanation which covered the entire period of the non-compliance from the date of the alleged unlawful arrest and detention; and (b) full information as to exactly what role his erstwhile attorneys played which caused his non­ compliance; and without the applicant seeking leave to appeal against the finding that the explanation had to cover the period from the date of the alleged unlawful arrest and detention, I am of the opinion that an appeal would not have a reasonable prospect of success.

19	the application for leave to appeal is dismissed with costs.

Kennedy Tsatsawane

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

15 March 2018