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IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 931/11

In the matter between:

LENTIKILE PATRICK SELEKO .........................................Plaintiff

and

THE MINISTER OF POLICE ...........................................Defendant

KGOELE J

DATE OF HEARING : 27 JUNE 2013

DATE OF JUDGMENT : 25 JULY 2013

FOR THE APPLICANT : Advocate C. Zwiegelaar

FOR THE RESPONDENT : Advocate T. Seboko

JUDGMENT

KGOELE J:

[1] The plaintiff, Lentikile Patrick Seleko, issued through his legal representative, a notice in terms of section 3 (4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (The Legal Proceedings Act), with the intention to bring legal proceedings against the defendant, the Minister of Police.

[2] The said notice was sent through a registered letter on the 21/02/2011. On the 09/06/2011 summons were issued against the defendant wherein damages for the unlawful arrest and detention were claimed by the plaintiff. The defendant filed his plea on the 23/08/2011 wherein a special plea that the summons were defective for want of compliance with section 3 of the Legal Proceedings Act was pleaded. This was the first time plaintiff became aware that the defendant is objecting to the notice issued by him.

[3] Plaintiff subsequently filed a notice to amend his particulars of claim on the 15/03/13 in order to include a prayer wherein condonation for the late filing of the notice was sought. The notice to amend further stipulated that the application sought will be made at the time of the trial of the action, hence this application.

[4] The plaintiff did not file a substantive application for condonation but testified under oath in support of his application. His evidence can be summarised as follows:-

He was arrested by the police on the 1/08/2009, a Saturday, at about ten in the evening, whilst he was at a Tavern at Setlagole. At that time he was using his friend’s motor vehicle, a Toyota Condor, white in colour, with the registration number DJB 003 NW. The police took him to Setlagole police station without informing him why he was being arrested. He was only told at Stella police station the following day at around four o’clock in the morning that he was arrested for house robbery. According to the police, the Toyota Condor he drove when he was arrested was involved in the alleged house robbery at the farms on the 29/07/2009. He was then detained and appeared in court on a Tuesday, the 4^th. He was joined to the other two suspects at court. He was released on bail on the 12/08/2009. The matter was postponed on subsequent dates until it was withdrawn provisionally on the 2/12/2009.

[5] According to him on the date and time of the alleged house robbery, the 29/07/2009, at 5h30am he was at work where he was employed previously. He did not use the Toyota Condor of his friend on this day but a Fiat Uno. The Toyota Condor was at the time stationery at his friend’s place as it could not start. The keys thereof were missing. He only used it on the 1^st August 2009 (the day of his arrest) after it was repaired by him and his friend. He had borrowed it to take his family to Setlagole to a funeral.

[6] He testified further that, he only attended school up to standard eight. He did not know that he was supposed to issue a notice first in terms of section 3(4) if he wanted to sue the police because of the fact that he was not legally qualified. This lack of knowledge, together with the fact that the court had indicated to him that the case was provisionally withdrawn, contributed to his delay in serving the said notice timeously. It was only in January 2011 that he got an advice from his friend that he can sue the police and that he should contact Advocate Strydom in this regard. This advice was according to him prompted by the fact that he was having problems in applying for a Public Driving Permit (PDP) at the Traffic Department because his case was according to the SAP records, still pending. As a result of this he managed to get a letter from the police at Stella that his case was finally withdrawn on the 14/02/2011. Advocate Strydom referred him to his current instructing attorney when he consulted with him on the 1/02/2011. Subsequent to this referral, a notice which was already late was sent to the Minister of Police.

[7] He finally testified that the police just arrested him unlawfully without any reasonable suspicion that he was involved in a commission of an offence, and worse, without a warrant of arrest. Further that he was detained from Friday until he appeared in court on Tuesday which detention exceeded the 48 hours limit that has been provided for by the Criminal Procedure Act 51 of 1977 (CPA).

[8] His friend Thys Lefosa was called as a witness on his behalf. He corroborated the entire evidence of the plaintiff in material respect as far as the borrowing of a car, the fact that the plaintiff was on the date of the alleged robbery driving his Uno, and further that he was the one that advised the plaintiff to seek legal advice.

[9] The defendant did not call any witnesses to testify on its behalf and submitted through its legal counsel that the court should decide the application solely on the evidence of the plaintiff.

[10] Section 3(4) (b) of the Legal Proceedings Act circumscribes a court’s power to grant condonation by requiring that it be satisfied that:-

1. the debt has not been extinguished by prescription;

2. good cause exists for the failure by the creditor, ie. to serve the statutory notice according to s 3 (2) (a) or to serve a notice that complies with the prescriptions of s 3(2)(b); and

3. the organ of State was not unreasonably prejudiced by the failure.

[11] In the case of Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA) at paragraph 12 the following were said in regard to the second and third requirements above:-

“ ‘Good cause’ usually comprehends the prospects of success on the merits of a case, for obvious reasons: Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 765 D-E. But, as counsel for the respondent stressed, whether that is the case must depend on the terms of the statute in which it is found. In s3 (4) (b) (ii), there is a specific link created between the delay and the ‘good cause’. According to counsel’s submission, no matter how strong an applicant’s case on the merits that consideration cannot be causally tied to the reasons for the delay, the effect is that the merits can be taken into account only if and when the court has been satisfied and comes to exercising the discretion to condone. I do not agree. ‘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 attached 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 s4 (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. Subparagraph (iii) calls for the court to be satisfied as to the latter. Logically, subparagraph (ii) is directed, as least in part, to whether the subject should be denied a trial on the merits. If it were not so, consideration of prospects of success could be entirely excluded from the equation on the ground that failure to satisfy the court of the existence of good cause precluded the court from exercising its discretion to condone. That would require an unbalanced approach to the two elements and could hardly favour the interests of justice. Moreover, what can be achieved by putting the court to the task of exercising a discretion to condone if there is no prospect of success? In addition, that the merits are shown to be strong or weak may colour an applicant’s explanation for conduct which bears on the delay: an applicant with an overwhelming case is hardly likely to be careless in pursuing his or her interest, while one with little hope of success can easily be understood to drag his or her heels. As I interpret the requirement of good cause for the delay, the prospects of success are a relevant consideration. The learned judge a quo misdirected himself in ignoring them.”

Further in the paragraph 14 of the same matter the following was said:-

“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’. This is a distinction which the learned judge did not draw or maintain and I think he was wrong not to do so.

Lastly in paragraph [15] and [16] the learned Judge remarked as follows:-

“Absence of prejudice has often been regarded as an element of good cause in the context of earlier legislation. It was, no doubt, also an element in determining where the interests of justice lay in the terms of s 57 of Act 68 of 1995. But in this Act the legislature has deemed it appropriate to treat absence of unreasonable prejudice as a specific factor of which an applicant must satisfy the court. The identification of separate requirements of good cause and absence of unreasonable prejudice may be intended to emphasise the need to give due weight to both the individual’s right of access to justice and the protection of state interest in receiving timeous and adequate notice.

The structure of s 3(4) is now such that the court must be satisfied that all three requirements have been met. Once it is so satisfied the discretion to condone operates according to the established principles in such matters, as to which see eg United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A) at 720 E-G.”

[12] Section 15 (1) of the Prescription Act 58 of 1969 provides:-

“The running of prescription shall, subject to the provisions of subsection (2) be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt”.

[13] Advocate Zwiegelaar on behalf of the plaintiff submitted that the evidence before court clearly shows that the police did not prove that they complied with requirements of section 40(1) (b) of the CPA applicable when they arrested without a warrant. The police clearly did not have a reasonable suspicion required by this section when they arrested the plaintiff. No reasonable grounds existed therefore the plaintiff has satisfied the first requirements that there are prima facie prospect of success in his action that is pending.

[14] She further submitted that it is clear that plaintiff is not legally qualified. He did not know about the notice that he should file before instituting action. The delay in timeously approaching the legal representative was exarsibated by the fact that he was of the view that his matter was still going to be re-instated as it was provisionally withdrawn. As soon as he contacted his legal representative after being advised by a friend, a notice was sent. This is not a case where the notice was not sent at all before the summons were issued. Therefore good cause exist for failure to serve the required notice timeously.

[15] Lastly that, there is no evidence before court or at the least, no facts from the papers filed of record that (i) the debt has been extinguished by prescription at the time the notice was served, (ii) that the defendant was unreasonably prejudiced by this failure.

[16] Advocate Seboko on behalf of the defendant submitted:-

16.1. That the arrest was lawful because the police acted on the basis of the statement in the case docket that were filed together with the information from the informer when they arrested the plaintiff;

16.2. That the detention was less than the prescribed 48 hours because the plaintiff was detained from Saturday morning at Stella Police Station according to the certificate signed by the police officer there and taken to court on Tuesday morning, therefore, the plaintiff failed to prove that there is some prospect of success in his pending action;

16.3. That the plaintiff received advices from his friend as early as he was released on bail in 2009 but nevertheless took the whole year and only went to his legal team in 2011, therefore the delay is inordinately long;

16.4. That the defendant was financially prejudiced by this failure;

16.5. That if this court does not grant the condonation, this means that the summons are defective and therefore at this moment the claim is deemed to have been extinguished by prescription.

[17] The requirements relating to presence or absence of prejudice and that of prescription can be summarily disposed of. There is no evidence at all or facts submitted by the defendant to substantiate that the failure to give notice timeously unreasonably prejudiced them except, a mere allegation of this fact that emerged from the bar. Likewise, there were no facts or evidence submitted by the defendant to gainsay the submission by the defendant’s counsel that the service of the notice although late at it was, or the summons, constitute a process as contemplated by section 15(1) of the Prescription Act 68 of 1969 (Prescription Act) and also section 1(4) of the Legal Proceeding Act as an institution of an action which interrupts the running of prescription of claim.

[18] The plaintiff was unaware of the requirement of a notice until he approached an attorney in 2011. He was told by the court that the case was provisionally withdrawn. The defendant did not dispute this. He had to go and seek help from the police seeing that there was no progress in his case which was pending. Of significance is that after obtaining a letter that his case was finally withdrawn from the police, which the defendant admitted, he acted upon the advice by his friend without wasting time and contacted his legal team. What is surprising is the fact that, despite the notice of the plaintiff’s legal representative being received by the defendant before the summons were issued, the defendant never objected to the late service of the said notice itself until after the summons were served.

[19] The Supreme Court of Appeal in the matter of Minister of Safety and Security v De Witt, [2008] ZASCA 103; 2009 (1) SA 457 (SCA) clearly indicated at paragraph [10] on pages 461 and 462 that an application for condonation is only required where the organ of State makes objection to the absence of the notice and it stated as follows:-

“Thus either a complete failure to send a notice, or the sending of a defective notice, entitles a creditor to make the application. Even this is qualified, it is only ‘if an organ of State relies on a creditor’s failure to serve a notice’ that the creditor may apply for condonation. If the organ of State makes no objection to the absence of a notice, or if valid notice, then no condonation is required. In fact, therefore, the objection of the organ of State is a jurisdictional fact for an application for condonation, absent which the application would not be competent”.

[20] One cannot conclude without analysing the facts of this case to determine the prospects of success. The incident of the alleged house-robbery took place in July 2009. Up until the summons were issued by the plaintiff till the hearing of this application there is no mention of the possibility that the case will be reinstated. Without making a ruling on the merits of the pending action, it seems to me that the prospects of success of the plaintiff’s action cannot be totally ruled out. I am heavily persuaded in this matter by the fact that the interest of justice favours that the plaintiff in the circumstances of this matter should not be denied a trial on the merits. All in all it seems to me that the prospects of success and his explanation for the initial delay both favour the plaintiff.

[21] I come to the conclusion that the plaintiff has satisfied the three elements of section 3(4) (b) (i),(ii) and (iii) of the Legal Proceeding’s Act. Consequently the following order is made:-

21.1. Condonation for the late filing of a notice in terms of section 3(4) of Act 40 of 2002 is hereby granted.

21.2. Costs to be costs in the cause.

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A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE PLAINTIFF : NIENABER & WISSING

FOR THE DEFENDANT : STATE ATTORNEY

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