---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG PROVINCIAL DIVISION

 

(1)    REPORTABLE: Yes/No

(2)    OF INTEREST TO OTHER JUDGES: Yes/No

(3)    REVISED: Yes  

17/11/2020

CASE NO: 63867/17

In the matter between:

SIMON SONGO                                                                                                    Applicant

and

THE MINISTER OF POLICE                                                                             First Respondent

 

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS                                                                                 Second Respondent

 

THE MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES                                                                            Third Respondent

JUDGMENT

Sardiwalla J:

 

[1]         The applicant seeks condonation for the late filing in terms of section 3 (4) (a) of the Institution of Legal Proceedings Against Certain Organs of State Act, Act 40 of 2002, (hereinafter referred to as the “Act”) for its failure to comply with section 3 (1) and 3 (2) (a) of the Act.

Background

[2]        The applicant was arrested on 19 June 2006 for the alleged murder of two men.

[3]       On 19 November 2009 the North West Division of the High Court convicted the applicant on two counts of murder and on 6 December 2009 sentenced him to 18 years of imprisonment.

[4]       On 15 October 2015, the Full Bench of the North West Division of the High Court upheld the applicant’s appeal against his conviction and sentence and ordered his immediate release from imprisonment.

[5]       The applicant brought an action for damages against the first to third respondents on the 14 September 2017.

[6]     The respondents in their plea in the main action has resisted the applicant’s claims for remuneration on the ground, inter alia, that it had not received the notice within six months as stipulated in section 3 of the Act and that on that basis there is no good cause. It further claimed there was no cause of action against the first and second respondents and that there was a misjoinder of the third respondent. The respondents abandoned their first and second special pleas.

[7]        It is important at this stage to re-iterate that this is condonation application, however by request of the parties and which was agreed to between the parties the special pleas were to be argued and decided upon as these would still remain preliminary points in the main trial. Whilst there is no rule that the special pleas must be decided in the main trial, I must point out that the respondents have the opportunity to set the matter down for hearing 10 (ten) days prior to the main trial for same to be argued. Albeit this Court is of the view that it would be more convenient to decide the special pleas where sufficient evidence has been led and that the issue relating to the fourth and fifth pleas be decided separately. This Court is of the opinion that there may be a need to present further evidence on this aspect as this raises an important constitutional issue which may require the law to be developed. This Court finds that there is insufficient evidence before it to determine that particular issue in light of the severe lack of jurisprudence on the subject matter. It is my view that a preliminary ruling on that issue could result in a gross irregularity being committed. Therefore, this judgment will not deal with that aspect but rather will deal with the remainder of the special pleas only.

 

Third special plea: Non-compliance with the Act

[8]      Section 3 of the Act deals with the giving of Notice of Intended Legal Proceedings against an Organ of State and as follows:

“Notice of intended legal proceedings to be given to organ of state:

(1) No legal proceedings for the recovery of a 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 ..

(2) 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 5

I.     the facts giving rise to the debt; and

II.    such particulars of such debt as are within the knowledge of the creditor.”

Section 3(4) provides:

(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) he organ of state was not unreasonably prejudiced by the failure.”

 

[9]       It is clear from the wording of the section that these requirements must be shown to exist cumulatively and in conjunction with each other. It is also trite law that the applicant bears the overall onus of proving their existence on a preponderance of probability. See Pillay v Krishna 1946 AD 946 at 952 – 953;

 

[10]     Where notice has been given then, the question arises whether the applicant satisfied this court of the existence of all three requirements contained in section 3(4)(b) of Act 40 of 2002.

Prescription

[11]   Section 12 of the Prescription Act 68 of 1969 states that;

“12 When prescription begins to run

(1)   Subject to the provisions of subsections (2) and (3), prescription shall commence to run as soon as the debt is due.

(2)   ..

(3)   A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.”

 

[12]     The term “due” is not defined in the Prescription Act.  Its meaning was recently considered by the SCA in Miracle Mile[1] where it was held that;

“In terms of the [Prescription] Act, a debt must be immediately enforceable before a claim in respect of it can arise.  In the normal course of events, a debt is due when it is claimable by the creditor, and as the corollary thereof, is payable by the debtor.  Thus, in [Deloitte Haskins] at 532G-H, the court held that for prescription to commence running,

‘there has to be a debt immediately claimable by the creditor or, stated in another way, there has to be a debt in respect of which the debtor is under an obligation to perform immediately’.

(See also The Master v I L Back & Co Ltd 1983 (1) SA 986 (A) at 1004F H). In Truter v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA) ([2006] ZASCA 16) para 16, Van Heerden JA said that a debt is due when the creditor acquires a complete cause of action for the recovery of the debt, i.e. when the entire set of facts which a creditor must prove in order to succeed with his or her claim against the debtor is in place”.^[2]

[13]     A fundamental principle of prescription, which is much clearer under the current Prescription Act, is that it will begin to run only when the creditor is in a position to enforce his right in law, not necessarily when that right arises.^[3]

 

[14]     In applying the principle held in Miracle Mile that a debt is due when it is immediately claimable by the creditor and immediately payable by the debtor, the debt became claimable by the plaintiff on the date of his release from incarceration on 15 October 2015. However, the complete cause of action was only established after consultation with his attorneys on 6 June 2017.  This principle was also confirmed in Truter^[4] where the SCA held that, for the purpose of prescription, a debt is due when the creditor acquires a complete cause of action to approach a court to recover the debt. Although the right to reclaim the amounts arose the day after his release from incarceration, in absence of any knowledge of the identity of the respondents, the applicant’s rights in law only became enforceable on 6 June 2017.

 

[15]     Considering the above, prescription would not have commenced as alleged by the respondents, the day after his alleged unlawful arrest and detention, but would commence from the instance the applicant became aware that the debt was due. This occurred when he consulted with his attorneys on 6 June 2017 therefore prescription began to run from 7 June 2017 and will only be extinguished on 8 June 2020. As a result of the above applicable principles the letter of demand that was served on the respondents in July 2017 was served within the six-month period as stipulated in section 3 (2)(a) of the Act.

 

Good cause

[16]     In considering the second requirement the locus classicus is Madinda v Minister of Safety and Security[5].  In this regard Heher JA remarked as follows at para [10]:

“[10]     The second requirement is a variant of one well known in cases of procedural non-compliance.  …  ‘Good cause’ looks at all those factors which bear on the fairness of granting the relief as between the parties and as affecting the proper administration of 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 offered, the bona fides of the applicant, and any contribution of other persons or parties to the delay and the applicant’s responsibility therefor.”

In para [12] at 317 C the learned judge continued as follows:

“[12]     … ‘Good cause for the delay’ is not simply a mechanical matter of cause and effect.  The court must decide whether the applicant has produced acceptable reasons for nullifying, in whole, or at least substantially, any culpability on his or her part which attaches to the delay in serving the notice timeously.  Strong merits may mitigate fault; no merits may render mitigation pointless.  There are two main elements at play in s 4(b) (sic – it should read s 3(4)(b)), viz the subject’s right to have the merits of his case tried by a court of law and the right of an organ of state not to be unduly prejudiced by delay beyond the statutorily prescribed limit for the giving of notice.”  (emphasis added)

[17]     I must also consider the delay in bringing the application for condonation as it might be relevant in adjudicating whether the applicant is entitled to the relief.  Heher JA dealt with this issue in Madinda supra in a matter where the plaintiff brought the application for condonation nine months after the letter of demand was rejected by the Minister of Safety and Security.  The following passages are quoted to emphasise the viewpoint of the Supreme Court of Appeal:

“[14]     One other factor in connection with ‘good cause’ in s 3(4)(b)(ii) is this: it is linked to the failure to act timeously. Therefore, subsequent delay by the applicant, for example in bringing his application for condonation, will ordinarily not fall within its terms. Whether a proper explanation is furnished for delays that did not contribute to the failure is part of the exercise of the discretion to condone in terms of s 3(4), but it is not, in this statutory context, an element of ‘good cause’. …

[20]      It is also true that, although her attorney received the rejection of the notice in the middle of October 2005, the appellant did not commence proceedings for condonation until July 2006. As I have earlier pointed out, unexplained delay which relates to the period after the notice was de facto given will ordinarily relate not to the establishment of good cause but to condonation. ...

…

[28]      … But when he received that reply it must have been clear that all hope of concession was past. It was the delay thereafter until July 2006 which he should have explained but did not. Applications for condonation should in general be brought as soon after the default as possible.  Thereby possible further prejudice to the other party and misconception as to the intentions and bona fides of the applicant can be lessened. A delay in making the application should be fully explained. The failure to do so may adversely affect condonation or it may merely be a reason to censure the applicant or his or her legal advisers without lessening the force of the application. I think that the latter is the correct attitude to take in the present matter in relation to the evaluation of whether condonation should be granted. Under the present statutory dispensation there is no time limitation on the institution of action and the appellant had until September 2007 (when her claim would have prescribed) to issue summons. The matter was clearly very much alive during the first half of 2006 and the State had no reason to think otherwise. Nor has the respondent suggested that it was prejudiced or misled by the additional delay.”  (emphasis added)

[18]     In  Minister of Agricultural and Land Affairs v C J Rance (Pty) Ltd[6] the general principles pertaining to the issues in casu were merely restated.  In that matter almost two and a half years lapsed before the plaintiff served a notice of its intention to institute proceedings on the Minister.  The delay was not explained.  The court referred at para [13] to the so-called conventional explanation for demanding prior notification of intention to sue organs of state to the effect that,

“with its extensive activities and large staff which tends to shift, it needs the opportunity to investigate claims laid against it, to consider them responsibly and to decide before getting embroiled in litigation at public expense, whether it ought to accept, reject or endeavour to settle them.”

[19]     In C J Rance supra the organ of state clearly demonstrated that it would be prejudiced if the late notice of demand was condoned insofar as it did not have any opportunity to do an investigation of its own pertaining to the fire that had allegedly broken out on State property and damaged the plaintiff’s assets.  Also, it was the court’s view that no factual foundation was laid for the court to establish whether there was some prospect of success in the action to be instituted. 

[20]     In MEC for Education, KZN v Shange[7] the court found that good cause had been shown.  The learner could not be blamed for any delay or failure.  He was still a minor when his cause of action arose and the court found that he was reliant on others to prosecute his claim and that they had failed him.  The attorney’s mistake to direct the notice of demand to the Minister of Education instead of the MEC for Education, KZN was excused by the court a quo and although the Supreme Court of Appeal referred to case law dealing with attorneys’ mistakes that could be attributed to their clients, it found that no blame for any delay or failure could be attributed to the respondent.  See also Dauth and others v Minister of Safety and Security and others[8] 

[21]    Bona fides play an important role in considering good cause.  It is evident in this matter that the applicant after his release in October 2015 sought legal advice albeit not immediately. However, it cannot be reasonably expected that a man that had spent nearly six years in imprisonment to have the financial means to seek legal advice or institute action immediately. It is significant to note that the letter of demand was served immediately after he consulted with his attorneys in June 2017. Therefore, due to the stipulated period in section 3 (2) (a) of the Act having not prescribed at that stage, the matter was clearly very much alive at all relevant times and the respondents had no reason to think otherwise. 

[22]     In the answering affidavit applicants’ attorneys are blamed for not acting speedily in bringing this application for condonation timeously.  The application for condonation is apparently opposed on the basis of absence of “good cause” and alleged prejudice.    However, no factual basis was laid for a finding that the respondents suffered any unreasonable prejudice as a result of any delay.  Such averment could surely not be made with any conviction. In find no reason why the respondents will be disadvantaged at the trial of the main action, whether or not it received late notice and/or the condonation application was brought at the eleventh hour. 

[23]     In condonation applications a court considers the merits together with the grounds advanced for the failure.  As stated in Madinda supra, and quoted above, strong merits may mitigate fault whilst no merits may render mitigation pointless.  It is also accepted that the interests of justice play an important role in condonation applications and that it is expected of an applicant to set out fully the explanation of his delay during the entire period of the delay and such explanation must be reasonable.  Also, a condonation application must be brought as soon as the party concerned realises that it is required.  Bearing all this in mind, Heher JA in Madinda highlighted the two important elements to be considered in adjudicating applications in terms of s 3(4)(b), namely the subject’s right to have his case tried by a court of law and the right of the organ of state not to be unduly prejudiced.  In casu no facts are alleged as mentioned supra and it is not even vaguely suggested that prejudice has been or will be suffered by respondents due to applicants’ non-compliance.  In this regard I wish to refer to the following dictum by Heher JA in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another[9], quoting from para [13]:

“[13]  A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.”  (emphasis added.)

[24]     There is no onus on an applicant for condonation to prove his/her case on a balance of probabilities.  The court must merely be satisfied that the three requirements contained in section 3(4)(b) have been met.  Although applicant and/or his attorneys might be blamed for the delay in bringing the application for condonation, there is no obvious prejudice to the respondents and as I have found above that the notice was served within the prescribed time period as prescription only began to run from 7 June 2017 when the applicant became aware that his claim was enforceable. As a result, the application for condonation was not even required.  The overall impression created by the undisputed facts is such that I am satisfied that applicant is entitled to have his case tried by a court of law.  

[25]     In the result the special plea of non- compliance must be dismissed. The applicant, as I have found, submitted the letter within the prescribed six-month period as set out in section 3(2)(a) of the Act and therefore an application for condonation in terms of section 3(4)(b) was in fact unnecessary.

Sixth Special Plea: misjoinder of the third respondent

 [26]  The issues of misjoinder are regulated in Rule 10[10] and the common law specifically. The test for misjoinder of a defendant was coined in Rule 10(3):

“(3)   Several defendants may be sued in one action either jointly, jointly and severally, separately or in the alternative, whenever the question arising between them or any of them and the plaintiff or any of the plaintiffs depends upon the determination of substantially the same question of law or fact which, if such defendants were sued separately, would arise in each separate action.”

 

[27]   Harms[11] dealt with the law in detail and with reference to case law.

“a)     If a party has a direct and substantial interest in any order the court might make in proceedings, or if such order cannot be sustained or carried into effect without prejudicing that party, he is a necessary party and should be joined in the proceedings unless the court is satisfied that he has waived his right to be joined.

b)       The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder objection.

c)      The term "direct and substantial interest" means an interest in the right, which is the subject-matter of the litigation, and not merely an indirect financial interest in the litigation.

d)      An academic interest is not sufficient. On the other hand, the joinder of joint wrongdoers as defendants is not necessary, although advisable.

e)       Likewise, if parties have a liability, which is joint and several, the plaintiff is not obliged to join them as co-defendants in the same action but is entitled to choose his target.

f)         A mere interest is also insufficient. A litigation funder may be directly liable for costs and may be joined as a co-litigant in the funded litigation. This would be the case where the funder exercises a level of control over the litigation or stands to benefit from the litigation.”

 

[28]   Erasmus[12] further elaborated that:

g)      Subrule (3): Several defendants may be sued in one action.

“Under the common law a number of defendants may be joined on grounds of convenience, equity, the saving of costs and the avoidance of multiplicity of actions. In Rabinowitz and Another NNO v Ned-Equity Insurance Co Ltd it was held that as regards the joinder of defendants, the common law has been preserved notwithstanding the provisions of this subrule. The subrule permits the joinder of parties in the same proceedings but it does not direct the hearing of evidence as between all defendants, so that the extent of liability is determined between the parties.”

h)             Substantially the same question of law or fact.

“This means that the questions of law and fact must ‘in the main’ or in their ‘principal essentials’ be ‘essentially’ the same.”

[29]       Again, Harms:[13] 

“i)      The rule is not intended to be exhaustive of the cases in which a plaintiff may join different defendants in one action. 

j)        Under the common law, a number of defendants may be joined whenever convenience so requires, subject to the power of the court to order separation of the actions. 

k)       Where a plaintiff sues two or more defendants in the alternative and, in the further alternative, jointly and severally for damages suffered, and the defendants deny liability and reciprocally point to one another as the party responsible for the plaintiff’s loss, a court should not grant absolution from the instance at the end of the plaintiff’s case if there is evidence which establishes that one or the other (or both) is liable even if it is uncertain which alternative is the correct one.

l)        That does not mean that the defendants must be put on their defence where there is no evidence of negligence.”

 

[30]        An exception is a legal objection to the opposition’s pleading. It complains of a defect inherent in the pleading; admitting for the moment that all the allegations in a summons or plea are true, it asserts that even with such admission the pleading does not disclose either a cause of action or a defence, as the case may be.[14] 

 

[31]        The formal requirements for an exception to succeed are either to proof that a pleading is vague and embarrassing[15] or a pleading lacks the averments necessary to sustain a cause of action or a defence.[16]

 

[32]      I will allow the misjoinder to be challenged by way of exception in this instance because the parties received adequate notification of the misjoinder-objection. The excipient did not step outside the particulars of claim.

 

[33]        The relief claimed in the main action is for an order against all the respondents. It is the following:

              “Wherefore the plaintiff claims from the first, second, third and fourth defendants, jointly and severally, the one paying the other to be absolved:

1.      Payment of R9,500,00.0;

2.      Interest thereon frim date of judgment to date of payment;

3.      Costs of suit;

4.      Further and/or alternative relief.”

 

[34]        There lies a claim for relief against the third respondent but the facts alleged by the plaintiffs do not show that it is implicated and may be prejudiced by the judgement of the court in the main action.  The relief is for damages as a result of the applicant’s wrongful incarceration that allegedly came about as result of by negligent conduct of the first and second respondents in investigating the matter. It is therefore stated that as a result the trial court misdirected itself in convicting the applicant on unreliable evidence that the applicant committed the crime with which he was charged.

 

[35]        Despite its claim for relief against the third respondent in its particulars of claim, in its heads of argument the applicant averred that although there is no vestige of a claim against the third respondent, as an executive authority of the administration of the criminal justice system in South Africa, the court may eventually hold the third respondent liable for the administration or the execution of the order made and payment of damages claimed. Further that the third respondent might have an interest in the matter.

 

[36]        The main contention by the respondents are that the applicant’s particulars of claim failed to set out the necessary allegations against the third respondent to sustain the action and is therefore fatally flawed. It further submitted that the applicant failed to establish a causal nexus between any of the facts pleaded and the third respondent. As a result, the applicant cannot obtain any judgment against the third respondent.

 

[37]     I must agree with the respondents that a detailed depiction of the facts is imperative to the judgement. I am bound by the facts as alleged in the particulars of claim in this instance. The mentioning of the third respondent in the particulars of claim of claim merely forms part of facts pleaded as background to the claim for damages. On this basis, I am of the view that the joining the third respondent is not sufficient to show that he has a direct and substantial interest in the subject matter of the action, that is, a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgement of the Court as held in the matter of Nyumba Mobile Homes and Offices (Pty) Ltd v Member of the Executive Council: Department of Health, Free State Province and Another (1719/2015) [2016] ZAFSHC 79 (6 May 2016)[17].  In my view the joining of the third respondent indeed constitutes a misjoinder and the special plea must be upheld.

 

[38] As a result, I make the following order: -

(1)     The applicants’ alleged failure to serve the notice contemplated in section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State , Act 40 of 2002, within the period laid down in s 3(2)(a) of the Act is hereby condoned.  

(2)        The third special plea of non-compliance is dismissed;

(3)        The fourth and fifth special plea of no cause of action must be adjudicated separately;

(4)        The sixth special plea of misjoinder is upheld; and

(5)  The respondents are ordered to pay applicants’ costs of the application on an opposed basis.

 

SARDIWALLA J

JUDGE OF THE HIGH COURT

 

 

 

Appearances:

For the Applicant:                                     Advocate TP Kruger SC    

Instructed by:                                           Mike Potgeiter Attorneys               

 

 

For the First to Third Respondents:         Advocate M Vimbi

Instructed by:                                           The State Attorney Pretoria

 

 

 

 

---