REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION
MIDDELBURG

Case : 2199/2018
(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 
SIGNATURE: H.C. Jansen van Rensburg
Date : 28th July2020

Case summary
Actions against Organs of the State - section 3 of the Legal Proceedings Against Certain Organs of the State Act 40 of 2002 – Condonation – requirements and ‘good cause’ – Section 174 of the Criminal Procedure Act 51 of 1977 – Unlawful arrest – Special plea – Giving notice to institute action against the State – prospects of success – Unreasonable prejudice.

In the matter between

ABEL LANDELA								APPLICANT

And

MINISTER OF POLICE							RESPONDENT

JUDGMENT
JANSEN VAN RENSBURG AJ
INTRODUCTION
[1]. This is an application by the applicant to institute legal action against the respondents in terms of section 3 of the Legal Proceedings Against Certain Organs of the State Legal Proceedings Act 40 of 2002 [the Act]. This application is only directed at the authorisation by this court for the applicant to institute legal action against an organ of the state. In this regard claims against organs of the state have been put in place to cater for claims against them.

[2].	The applicant is seeking the following relief  –
‘1.	The applicant is condoned from complying with section 3 the institution of Legal Proceedings Against certain Organs of the State Act 40 of 2002;

2.	Cost of suit in the event the respondents defends oppose this application’

[2]. The notice to institute legal action against the State, and for that matter the respondent was filed outside the prescribed six months’ period referred to in the Legal Proceedings Act.

[3].	The applicant served a notice of joiner which was withdrawn. The applicant served its notice to withdraw its replying affidavit. The applicant is seeking condonation for the late filing of its notice to institute legal action against the respondent in not having complied with section 3(2)(a) of the Legal proceedings Act. 

THE APPLICANT
[4].	The applicant mr Abel Landela, was arrested on Friday 2nd March 2012 without a warrant by unknown police officials and taken to the Delmas Police Station and detained for 7 days without being charged. On 9th March 2012 the applicant appeared in court and was charged with robbery and theft under Delmas CAS 94/02/2012. The applicants’ application for bail was refused and the applicant was detained for two years at the Modder bee Correctional Services. 

[5].	The applicant was tried on the charges and on 11th September 2013 discharged in terms of section 174 of the Criminal Procedure Act 51 of 1977 and released on 19th February 2014.

[6]. On 3rd December 2014 the applicant instituted legal action based on ‘unlawful arrest and detention’ for a claim for damages against the respondent, the Minister of Police, (the Minister) in which he alleged that he had been unlawfully arrested without a warrant by members of the South African Police Service (the SAPS) acting in the course and scope of their employment. 

[7]. The applicant failed to give the Minister notice of the claim for damages within the prescribed period, as he was required to do in terms of the legal Proceedings Act.  

 [7]. On 19th March 2014 the respondents’ file a plea which incorporated a special plea. The Minister filed a special plea in which this point was taken and, in response, the applicant brought an application for condonation of the late giving of the notice. Initially the National Director of Public Prosecution was joined as a party in this application but the present application is only against the respondent. 

[8].	The applicant filed an application for condonation dated 8th June 2016 but this application for condonation was later withdrawn. On 25th June 2019 the respondent served its answering affidavit on the applicant. The former attorney of the applicant withdrew from the matter as attorney acting on behalf of the applicant.

[9]. The applicant failed to file a replying affidavit on or before 9th July 2019 but was ordered to do so on or before 20th January 2020. As a result there is no replying affidavit in this application.  

[10].	The applicant issued its notice in terms of section 3 of the Legal Proceedings Act on 24th September 2014 informing the respondent of his intention to institute legal action for a claim for damages against the respondent. This notice was sent some two years and 6 months after the date on which the applicant was arrested.

[11].	The applicants case is mainly based on the Legal proceedings Act that he was arrested, kept in custody whilst being tried and thereafter discharged after unnecessarily spending some two years in custody. In this regard a court must also take into account the cause for the delay in issuing and serving the notice to institute legal proceedings against an organ of the state.  The applicant submit the he would be prejudiced if the court does not grant condonation for the late service of the section 3 notice in terms of the Legal Proceedings Act. 	

[12]. It is required that an applicant under these circumstances must show the existence of the following – 

‘[12.1.].	Show ‘good cause’ and 

[12.2.].	Have good prospects of success in the main action against the organ of the state. 

[13].	Section 3(4)(iii) of the Legal Proceedings Act refer to the prejudice to be suffered for any late filing of notices and documents. The applicant submit that records would be available and that the applicant would be prejudiced if the condonation application is dismissed.  In this regard the applicant bears the onus of satisfying the court that it met the requirements set forth in section 3(4)(b) of the Act. 

THE RESPONDENT
[14].	It is common cause that the applicant was arrested on 2nd March 2012, been charged with robbery and theft and was on trial for some two years. It is common cause that the applicant was discharged in terms of section 174 of the CPA 51 of 1977. It is common cause that the applicant has instituted legal proceedings against an organ of the state in terms of the Act.

[15]. The respondent submit that the notice to institute legal action against an organ of the state is two years late; the notice should have been served at the latest on 5th September 2012. The respondent submit that the applicant served its notice on 29th September 2014 which was two years late. The respondent submitted that the notice must have been served on the respondent (in this case) within six months of the debt becoming due or the action arose.

[16]. The respondent submitted that –

[16.1.]. The applicant failed to explain the delay in issuing the application against the respondent.

[16.2.]. That the applicant cannot rely on being a lay person as he was represented by an attorney at the time.

[16.3.].	That the applicant did not make out a case for the relief sought.

[16.4.].	That the applicant did not satisfied the requirements of section 3(4)(b) of the Act.	

[17]. 	The respondent submitted that the applicants notice was served after the applicant issued a summons in the main matter. For this reason the notice is null and void as it was only served after the respondent served its plea and special plea in this regard. The attorney of the applicant serve the notice in terms of section 3 of the Legal Proceedings Act late without any explanation of the reasons for the late service of the said notice. 

[18]. The applicant served its first application for condonation on 8th June 2016 and thereafter withdrew that application, The applicant brought a second application for condonation dated 30th May 2019 which is some 7 years after the applicant was arrested and sone five years after the applicant was released from prison in terms of section 174 of the CPA 51 of 1977. 

[19]. The reason for the withdrawal of the first application for condonation was seemingly not followed through. This court ordered the applicant to serve an application for condonation before 13th May 2019. On 30th May 2019 the applicant serve its application for condonation which was out of time without explaining the reasons therefore 

ANALYSIS OF THE EVIDENCE
[20].	The state opted to promulgate the Legal Proceedings Act to ensure uniformity in legislation dealing with legal proceedings against organs of state which would sought to balance the fundamental rights of the people and the legitimate interests of organs of state. The result was the Legal Proceedings Act.

[21]	The long title of the Legal Proceedings Act provides that its purpose is -  

‘[t]o regulate the prescription and to harmonise the periods of prescription of debts for which certain organs of state are liable; to make provision for notice requirements in connection with the institution of legal proceedings against certain organs of state in respect of the recovery of debt; to repeal or amend certain laws; and to provide for matters connected therewith’. 

[22]	Section 3 is the heart of the Legal Proceedings Act. It provides, in section 3(1), for the giving of notice in respect of the institution of legal proceedings against organs of state, unless an organ of state waives its rights. It states –

‘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

(b)	the organ of state in question has consented in writing to the institution of that 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).’

[23]	Sections 3(2) and (3) deal with the giving of notice and reads as follows – 

‘(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 the knowledge 	of the creditor.

(3) For purposes of subsection (2)(a) –

(a)	a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and

(b)	a debt referred to in section 2(2)(a), must be regarded as having become due on the fixed date.’

[24]	Section 3(4) provides for condonation in the event of notice not being given at all or defective notice being given – 

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

(c) 	If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal proceedings in question, on such conditions regarding notice to the organ of state as the court may deem appropriate.’

[25]	This case is concerned with the interpretation and application of section  3(4). Section 3(4) refers to the powers of a court to condone the late service of the required notice on an organ of the state. If the application is granted, the court may grant leave to the applicant to institute legal proceedings against the respondent on any conditions it deems fit and appropriate under the circumstances.  For the applicant to be successful in its claim against the respondent is depending on section 3(4) of the Act. The threshold that the applicant must pass is the following – 

[25.1.].	That the debt has not been extinguished by prescription.

[25.2.].	The applicant must show ‘good cause’ for the failure of the creditor.

[25.3.].	That the organ of the state was not unreasonably prejudiced by the failure.

[26].	Should the court grant the applicants application in terms of section 3(4)(b) the court may grant leave to institute legal proceedings on such conditions regarding notice to the organ of state as the court may deem appropriate. It is clear from the papers that the respondent is an organ of the state and that it is sued for acts performed under the applicable and appropriate Acts of Parliament. 

[27].	The requirements for condonation is clearly set out where the applicant must explain the reasons for the lateness which reasons must be ‘reasonable, bona fide and that the other party would not be prejudiced, should the application for condonation be granted.’  These requirements are conjunctive and must be established by the application for condonation.  	 

[28].	In dealing with the requirements set for the applicant to satisfy before a court can grant the relief included in section 3(4)(c)of the Legal Proceedings Act it is necessary to analyse the requirements in line with judgments and the law. It is required to evaluate the requirements jointly and not one-by-one or in isolation.   The applicant must show ‘good cause’ to institute legal action against an organ of the state. ‘Good cause’ includes all the factors which bears on the fairness of grating the relief in the proper administration of justice as well as the prospects of success in the proposed action, the reasons for the delay and the bona fides of the applicant.   

[29]. The applicant was released from custody on 19th February 2014 and the applicant submit that the debt became payable as from the date of release when the ‘cause of action commenced.  In this regard the applicants claim came into existence on 19th February 2014 but that the claim would not yet be enforceable. For this reason the applicant must have served its notice of intended legal action on the respondent on or before 17th August 2014. The applicant served its notice to institute legal action against the state on 29th September 2014 some 7 months and eleven days after the date when the debt became due. Section 3(4((b) of the Legal proceedings Act contain the wording ’....as soon as the party concerned realised that it is required..’ should be interpreted widely and not in the narrow sense of the phrase on condition that the time period would not be unreasonably extensive. 

[30].	In my view, where an accused person is being held in custody and being tried for offences does not have an impact on the requirements of the Legal Proceedings Act proceedings whereby an accused person first has to engage in a trial before issuing a notice in terms of section 3 of the Legal Proceedings Act, To expect an accused to issue such a notice during a trial would not be reasonable. The applicant could only been able to revert to the institution of legal action after he has been discharged from prison on 11th September 2013 in terms of section 174 of the CPA 51 of 1977. No detainee or accused or suspect can serve a notice of its intention to institute action against an organ of the state whilst such a person is lawfully detained in terms of a court order. It is not in dispute by the respondent that the notice was received. It is also common cause that the claim had not prescribed. 

The evaluation of the requirements for condonation
[31].	The correct test for a court to apply for an application for condonation in terms of the Legal Proceedings Act refer firstly that the requirements mentioned in section 3(4) are present which involves not proof on a ‘balance of probabilities’ but ‘the overall impression made on a court which brings a fair mind to the facts set up by the parties’. 

[32]	Secondly, the requirement of ‘good cause' involves an examination of – 

‘...all those factors which bear on the fairness of granting the relief as between the parties and as affecting the proper administration of justice’ and 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 by other persons or parties to the delay and the applicant's responsibility therefore’.

[33].	Thirdly, ‘good cause’ for a delay is not – 

‘.....simply a mechanical matter of cause and effect’ but involves the court in deciding ‘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 timorously’; and in this process, ‘[s]trong merits may mitigate fault; no merits may render mitigation pointless’. 

[34].	Fourthly, the interests involved where the court held that –

 ‘There are two main elements at play in s 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. Subparagraph (iii) calls for the court to be satisfied as to the latter. Logically, subparagraph (ii) is directed, at 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.’ 

[35]	Fifthly, it is particularly important that the circumstances relevant to just cause ‘be assessed in a balanced fashion’, so that the Legal Proceedings Act that ‘the applicant is strong in certain respects and weak in others will be borne in mind in the evaluation of whether the standard of good cause has been achieved’.

 [36]	Sixth, it must be borne in mind that the concept of ‘good cause’ is not self-standing but is linked to the delay. As a result – 

‘....subsequent delay by the applicant, for example in bringing his application for condonation, will ordinarily not fall within its terms’. This does not mean that such delays are irrelevant: while they are not part of the ‘good cause’ enquiry, they nonetheless are ‘part of the exercise of the discretion to condone in terms of s 3(4)’.

Good cause 	
[37].	The applicant issues a summons and serves it on the respondent, only to be informed is a special plea that the applicant did not first serve a notice in terms of section 3 of the Legal proceedings Act. This in itself was a failure by the applicant to have done so. To state that the applicant was a lay person is not enough. The summons was most probably drafted by an attorney who must have known about the procedures to be followed in terms of the Legal proceedings Act. 
 
 [38].	Finally, unlike the position in other legislation, in the approach to condonation in the context of non-compliance with the rules of court and the like, a clear distinction is drawn in section 3(4) of the Legal Proceedings Act between ‘good cause’, on the one hand, and ‘absence of prejudice’, on the other. The purpose of the distinction is 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 timorous and adequate notice’.

[39].	When a judge decides to grant or refuse condonation, he or she exercises a discretion based on a balancing of relevant factors. In the case of what has been described as a narrow discretion, an appeal court may only interfere in the event of misdirection on the part of the court of first instance. 

Prospects of success
[40]. The applicant does not elaborate on his prospects of success. All that included in the founding affidavit is that the applicant was found not guilty of on the charges and that the respondent acknowledges that the applicant was arrested.   Other as to allege that the applicant was arrested there is no other indication as to what other factor could make a contribution in favour of the applicants’ case. 	

Unreasonable prejudice
[41].	The enquiry into unreasonable prejudice shifts the focus from the conduct of the person applying for condonation to the effect of the non-compliance on the interests of the respondent. The unreasonable prejudice complained of must, of necessity, be related to the delay in giving notice.  In other words, it is only prejudice that arose between the beginning of 29th September 2014 instead of 19th August 2014, some one month and 10 days late  when the notice was given, that is relevant.

The applicant as accused whilst in prison and on trial
[42]. In my view, as referred to above in this judgment, it would be unreasonable and not in the interest of justice to expect from a suspect or accused awaiting trial, or even during trial proceedings to have served a notice in terms of section 3 of the Legal Proceedings Act, simply for the reason that the suspect or awaiting trial accused does not have the access to legal resources which is readily available at the time. It is not practical for a suspect or an accused awaiting trial to serve such a notice as the suspect or awaiting trial accused ids included in the criminal procedures being charged with an offence which stand to be determined by a trial court. The only opportunity that such an accused has is on the day the he or she is discharged in terms of section 174 of the CPA . From that day onwards in my view the six month perior to institute action against the organs of the state in terms of the Legal Proceedings Act should be invoked. 

[43]. In my view in this case that date on which the applicant was able to have served a section 3 notice on the applicant is 19th February 2014. To expect the applicant in this application to have served the section 3 notice on 2 March 2012 or shortly thereafter is not fair and in the interest of the administration of justice. 

[44]. The timeline of the applicant is as follows –

[44.1.]. Applicants’ arrest : 2nd March 2012.

[44.2.]. Applicant released after grating discharge in terms of section 174 of the CPA 51 of 1977 : 19th February 2014.

[44.3.].Notice in terms of section 3 of the Legal Proceedings Act to the NDPP  : Dated 16th April 2014 but only sent via registered postdated 25 April 2014. 

[44.4.]. Notice in terms of section 3 of the Legal Proceedings Act to the National Commissioner of Police Service : Dated 16th April 2014 but only posted on 29th September 2014. 

[45]. The summons of the applicant was issued on 3rd December 2014 against the respondent. 

[46]. The respondents case is that the applicant was ‘out of time’ in serving its section 3 notice and that the summons preceded the serving of the section 3 notice. The respondents case is that the applicants’ delay in serving its section 3 notice is defective. The respondent alleges that the section 3 notices were dated 16th April 2014 and –

[46.1.].	Service on the National Commissioner of South African Police Service  – 

’22. The applicant has attached the notice addressed to the National Commissioner of South African Police Service....it is noted from the notice that it is dated 16th April 2014. Yet it was only sent to the first respondent on the 29th September 2014 and there is no explanation in the affidavit about the further delay.’

[46.2.].	The respondent argue that the applicant has not explain the delay of the six months in which he had the opportunity to have instituted the claim for damages. The respondent argues that there is no explanation for the delay from 16th April 2014 when the notice was drafted for a period of 19 months. The respondent submits that the applicant does not explain the delay in the notice being drafted in April 2014 and only served is September 2014.    

[47].	 From the reading of the papers it seems as if there were some confusion which originated after the applicant served its summons and the plea and special plea by the respondent. If I read the papers before me it is clear that the applicant did indeed complied with the requirements of section 3 of the Legal Proceedings Act by informing the respondent from its intention to institute legal action against it as an organ of the state.

[48].  Following the postage of the applicants’ section 3 Notice on 29th September 2014 to the National Commissioner of South African Police within the six months period (five months as from 16th April 2014),  the office of the State attorney received the applicants’ notice and the summons. The applicants’ summons was issued after the ’grace period of 30 days’ has expired against an organ of the state, such as the respondent.   

Conclusion
[49]. From the application and the contents thereof, read with the papers in Bundle A and B I am of the view that the respondents special plea  on the summons of the applicant is not reflecting the correct information. This might have caused this application by the applicant to be issued and dealt with by this court.

[50]. I have referred to the ‘time line’ of the applicants’ actions and the documentary proof which is attached to the applicants’ application. The respondents’ only point is the delay in the service of the section 3 Notices. I find that the second section 3 Notice posted to the National Commissioner of South African Police Services was indeed served within the six months period (calculated from 16th April 2014 to 29th September 2014 – 5 months and one week). The respondent does not state that this notice was received late but only question the date of the letter and the date of postage. In this regard the applicant does not have to explain any ‘delay’ as the timeline of the applicant is within the six months required by the Legal Proceedings Act 40 of 2002.  

[51]. 	In conclusion I find that there was no need for the applicant to apply for condonation for any alleged breach of procedures and requirements laid down by the Legal Proceedings Act 40 of 2002. 

ORDER
1.	That the applicant has complied with the provisions of section 3 of the Legal Proceedings Act Against Certain Organs of the State Act 40 of 2002.

2.	That the respondent is ordered to pay the cost of this application on a party-and-party scale.

H.C. JANSEN VAN RENSBURG
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MBOMBELA DIVISION [MIDDELBURG] 

NO ORAL ARGUMENTS OR SUBMISSIONS AS AGREED
BETWEEN THE APPLICANT AND RESPONDENT
DATE OF JUDGMENT : 28TH JULY 2020

(Sent electronically due to Covid – 19)

THE APPLICANT
Ngomana & Associates Attorneys
E mail : litigation@ngomana-attorneys.co.za
             ngomanaattorneys@telkomsa.net
Ref : MRS MOUKANGOE/L117/MHL

RESPONDENT
State Attorney
Email : danie@schutteinc.co.za
Ref : 2668/14/Z63