REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)

(1)	REPORTABLE: NO 
(2)	OF INTEREST TO OTHER JUDGES: NO 
(3)	REVISED

________________
 13 MARCH 2020	             N ADAM 

CASE NO: 7540/2019 

In the matter between
ROELOF JOHANNES MULLER			                               APPLICANT			     	   							
and 

THE MINISTER OF POLICE 	                                     FIRST RESPONDENT
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS 					          SECOND RESPONDENT

J U D G M E N T
_______________________________________________________________
ADAM AJ:
[1].	In this application the applicant, Mr Muller, is seeking condonation for the late filing of the notice of intended legal proceedings to be given to an organ of state in terms of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act (the Act). The applicant further seeks costs in the event that the application is opposed. 

Background
[2].	The applicant was arrested at his residence on 5 December 2017 by members of the South African Police Service (SAPS) on a charge of murder. Subsequent to being arrested, the applicant was detained at the Krugersdorp Police Station on 5 December 2017 until 6 December 2017 and thereafter transported to the Krugersdorp Magistrate Court to attend his first court appearance before a magistrate. At the applicant’s court appearance he was remanded, pending a formal bail application. The applicant was detained in the Krugersdorp prison up until the date of his bail application on 14 December 2017. On 23 August 2018, the applicant was prosecuted and stood trial at the Palmridge High Court and was acquitted of all charges.

[3].	The applicant gave notice of his claim for damages in a letter addressed to the National Commissioner of the South African Police Service and the National Director of Public Prosecutions on 27 September 2018 and on the Provincial Commissioner of the South African Police Service on 28 September 2018. The respondents did not reply or acknowledge receipt of the notices.

[4].	The applicant issued summons on 28 February 2019 and the summons was subsequently served on the respondents on 22 March 2019. The applicant was informed by way of a special plea of non-compliance on 23 April 2019 that the notice in terms of section 3(2) of the Institution of Legal Proceedings against Certain Organs of State Act (the Act) did not comply with the requirements set out in the Act.

Condonation
[5].	Section 3(1) and (2) of the act stipulates: 
(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. 
(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 –
(i)	the facts giving rise to the debt; and
(ii)	such particulars of such debt as are within knowledge of the creditor. 

[6].	Section 3 (4) states:
(a)	if an organ of state relies on the creditor’s failure to serve a notice in terms of subsection (2) (a), the creditor must 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)	the organ of state was not unreasonably prejudiced by the failure.

[7].	The requirements set out in section 3(4) are conjunctive and all three must be established by the applicant in the condonation application.

Debt extinguished by prescription 
[8].	For the court to be satisfied that condonation may be granted, it must be convinced that the claim has not prescribed. 

[9].	The statutory requirement is that the notice must be served on the organ of state within six months from the date on which the debt became due. The arrest occurred on 5 December 2017 and the applicant was detained until 14 December 2017. The claim arising from this arrest must be initiated on or before 5 December 2020. In the circumstances, I am satisfied that the summons which was issued on 28 February 2019 was issued well within the prescribed time period and the claim has not been extinguished by prescription.

Does good cause exist?
[10].	The applicant’s notice was sent on 27 September 2018, a period of 3 months and 22 days late. He says that he is a layperson without any legal training. He has no knowledge of the legal procedures as laid down in the civil laws and rules of court. He further states that he did in fact intend instituting action against the respondent however, his financial constraints subsequent to his arrest made it seemingly impossible for him to afford legal representatives to take legal action immediately. He was advised during or about September 2018 that his current attorneys would take on this matter on a contingency basis and he then consulted with his current attorney or instituted the action and sent out the notice. It is clear that the applicant did not sit idly by and attempt to do nothing. Furthermore, the applicant was arrested for murder however he indicates that it was an incident of self-defence which happened at his residence in front of his family. He was acquitted of all charges against him. The applicant has good prospects of success the merits in the main action.

[11].	The Act does not define ‘good cause’. In Silber v Ozen Wholesalers (Pty) Ltd, the Court remarked:
‘The meaning of ‘good cause’ in the present sub rule, like that of the practically synonymous expression “sufficient cause” which was considered by this court in Cairn’s Executors v Gaarn 1912 A.D 181, should not lightly be made the subject of further definition. For to do so may inconveniently interfere with the application of the provision to cases not at present in contemplation. There are many decisions in which the same or similar expressions have been applied in the granting or refusal of different kinds of procedural relief. It is enough for present purposes to say that the defendant must at least furnish an explanation of his default sufficiently fully to enable the court to understand how it really came about, and to assess his conduct and motives.’

[12].	Good cause as pointed out in Madinda v Minister of Safety & Security  is also linked to the failure to act timeously. The failure has a bearing on the discretion which is exercised by the court in determining whether or not to grant condonation. The onus lay on the applicant to show good cause for the Delay and I am satisfied that he has demonstrated good cause for the condonation.

Prejudice to the respondents    
[13].	The onus to show the absence of prejudice lies with the applicant. As pointed out in Madinda v Minister of Safety & Security dealing with good cause and the absence of unreasonable prejudice separately may be intended to strike a balance between the individual’s right of access to justice and the protection of state interest in receiving timeless and adequate notice.

[14].	The applicant asserts that the respondents are the custodian of all the relevant registers, files, statements and case docket relating to the applicant’s arrest which should enable them to prove and/or disprove the claim against them. Furthermore, the answering affidavit is deposed to by one who purports to have constructive knowledge of circumstances which led to the applicant’s arrest and volunteers information which could only come from a record or witnesses available to the respondent. 

[15].	As prescribed in section 3(4)(b) the court can only exercise its discretion and grant condonation once it is satisfied that the three requirements have been met as the requirements set out in section 3(4) are conjunctive. 

[16].	The claim has not prescribed. The applicant has shown good cause for his default and there is no prejudice to the respondent arising from the 3 months and 22 days delay in the service of the relevant notice. I agree with the submissions made by Mr Govender on behalf of the applicant that the applicant has made out a case for condonation.

[17].	In the circumstances, the application was justified.

Costs 
[18].	The respondents are entitled to oppose an application where a litigant fails to comply with a statutory requirement. The applicant stands with the proverbial hat in hand seeking an indulgence from the court for his failure to adhere to the time periods stipulated by legislation.

[19].	In this matter the interests of justice would best be served if the costs are ordered to be in the cause. 

Order
In the circumstances, the following order is made:
(1)	Condonation is granted for the applicant’s 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 section 3(2)(a) of the Act.
(2)	Costs are to be in the cause.

_________________________
N ADAM
ACTING JUDGE OF THE HIGH COURT

COUNSEL FOR APPLICANT  			ADV G GOVENDER
											
APPLICANT’S ATTORNEYS			GELDENHUYS ATTORNEYS

COUNSEL FOR RESPONDENTS 		ADV S SITHENE
								 
RESPONDENTS’ ATTORNEYS 	 THE STATE ATTORNEY

DATE OF HEARING				10 MARCH 2020
DATE OF JUDGMENT 				13 MARCH 2020