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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATHSWANA PROVINCIAL DIVISION)

CASE NUMBER 772/2006

In the matter between:

SEHULARO DOMINIC SEDIKO Applicant

and

THE MINISTER OF SAFETY AND SECURITY Respondent

CIVIL MATTER

DATE OF HEARING : 19 JUNE 2008

DATE OF JUDGMENT : 26 JUNE 2008

COUNSEL FOR THE APPLICANT : ADV C ZWIEGELAAR

COUNSEL FOR THE RESPONDENT : ADV N GUTTA

JUDGMENT

HENDRICKS J:

[A] Introduction:-

[1] This is an application for condonation of the Applicant’s failure to serve a notice of his intention to institute a civil action against the Respondent within the specified time frame as contained in Section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, Act 40 of 2002 (hereinafter referred to as “the Act”). This application is brought in terms of Section 3(4) of the said Act and it also entails an application for leave to institute the proposed action without giving further notice to do so.

[B] The facts:-

[2] The Applicant’s proposed action against the Respondent is to recover damages suffered as a result of malicious prosecution. He was charged and stood trial on a charge of theft but was acquitted on the 4^th July 2005.

[3] It is trite law that in an action based on malicious prosecution, a plaintiff’s cause of action only arises after the successful termination of the criminal proceedings in the plaintiff’s favour.

See:- Els v Minister of Law and Order 1993 (1) SA 12 (C). The Applicant’s claim thus became due on the 4^th July 2005.

[4] It was incumbent upon the Applicant to give notice of his intention to institute civil action against the Respondent within six months from the date on which the claim became due (4^th July 2005) which was the 4^th January 2006 .

[5] Shortly after being discharged on the 4^th July 2005, the Applicant instructed his erstwhile attorney to institute civil action against the Respondent, which the attorney failed to do. The Applicant gained knowledge of his attorney’s failure to institute the civil action against the Respondent during November 2005.

[6] On 7 December 2005, the Applicant approached his current attorneys of record and instructed them to proceed with the civil claim on his behalf. Applicant’s attorneys of record mailed a letter by registered posts to the Provincial Commissioner of the South African Police Services (“SAPS”) for the North West.

[7] Applicant’s attorney was during January 2006 advised that the letter should have been served on the National Commissioner of the SAPS and that it could therefore not be accepted by the office of the aforesaid Provincial Commissioner. After seeking a legal opinion in this regard, Applicant’s attorney of record send a letter dated 29^th March 2006 per registered post to the Office of the National Director of the SAPS at Private Bag X 9, Pretoria. No response was forthcoming.

[8] It appears that the letter was mailed to the wrong address because the address of the Office of the National Commissioner is Private Bag X94 and not Private Bag X9, to which the said letter was mailed. The effect of this is that no notice as contemplated in Section 3(1)(a) of the Act was given to the Respondent at the time of the lodging of this application.

[9] On behalf of the Respondent was raised in limine the point that the Applicant’s application is premature because the Respondent has not received the notice given in the terms of the letter dated 29 March 2006 and thus did not had the opportunity to reply thereto.

[10] It is contended by the Respondent that it would only have been necessary for the Applicant to launch an application for condonation once the Respondent has indicated in his plea that he relies on the Applicant’s failure to serve a notice in terms of Section 3(2)(a) of the Act.

[11] This contention by the Respondent cannot be correct. Section 3(1) of the Act provides that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless:-

“the creditor has given the organ of state notice in writing of his/her intention to institute the legal proceedings.”

(Section 3(1)(a) of the Act.)

“the organ of state has consented in writing to the institution of that legal proceedings –

without such notice, or

upon receipt of a notice which does not comply with all the requirements set out in Section 3(2) of the Act.”

(Sections 3(1)(b)(i) and (ii) of the Act.)

[12] The Applicant is thus not entitled to institute his proposed action against the Respondent without the written consent of the Respondent seeing that no notice of such intention was given.

[13] It is clear that upon receipt of service of this application, the Respondent gained knowledge of the attempts that Applicant made to effect service of the notice of his intention to institute an action for malicious prosecution. Instead of providing the necessary consent, the Respondent elected to oppose this application. The fact that the Respondent elected to oppose this application leads me to the inevitable conclusion that the Respondent would in any event not have consented to the institution of the action against it. The only avenue open to the Applicant was to seek the assistance of this court and apply for condonation and leave to institute the action.

[14] Section 3(4)(b) of the Act provides that a court may grant condonation if it is satisfied that:-

• the debt has not been extinguished by prescription;

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

• the organ of state was not unreasonably prejudiced by the failure.

[15] The Applicant’s cause of action will become extinguished by prescription on 04 July 2008. I am satisfied that good cause has been shown by the Applicant for his failure to timeously (or at all) give notice of his proposed action to the Respondent. At first, the Applicant was let down by his erstwhile attorneys of record by failing to carrying out his mandate and in the second instance, by his current attorneys of record to mail the notice (letter) to the wrong office (to wit the office of the Provincial Commissioner of SAPS North West instead of the National Commissioner of SAPS) and later to the wrong address (to wit Private Bag X9 instead of Private Bag X94, Pretoria).

[16] I am furthermore of the view that the Respondent will not be unreasonable prejudiced by the failure of the Applicant to timeously give notice of his intention to institute a civil action. Though the charge sheet and record of the proceedings in the criminal trial may no longer be available, it does not per se mean that the Respondent is unreasonably prejudiced. In actual fact, to use the English expression “it cut both ways”. Both the Applicant as well as the Respondent are equally disadvantaged as a result hereof. It is made clear though that the case docket is still available. Without being too presumptuous, I think the case docket must contain certain valuable information. However, it is for the applicant to proof his case in the appropriate forum.

[17] Without elaborating too much on the prospects of success, I am of the view that the Applicant do have such prospects, especially so, because of the fact that he was discharged at the close of the case for the State and the reasonableness of his explanation as to how he came to be in possession of the money.

See:- The as yet unreported judgment of Madinda v Minister of Safety and Security (153/2007) [2008] ZASCA 34 (28 March 2008).

[18] Having regard to the aforementioned, I am of the view that it will not be necessary for the Applicant to give any further notice of his intention to institute his proposed action to the Respondent. This application constitutes in my view sufficient notice of the intended or proposed action.

[C] Costs:-

[19] I am of the view that costs should follow the result. I find no reason to decide otherwise.

[D] Conclusion:-

[20] Therefore, I make the following order:-

[i] 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 the State Act 40 of 2002 within the period laid down in Section 3(2)(a) of the Act;

[ii] Leave is granted to the Applicant to institute a civil action against the Respondent to recover the damages sustained by the Applicant as a result of the malicious, alternatively negligent prosecution instituted against the Applicant;

[iii] Respondent is ordered to pay the costs of this application.

R D HENDRICKS

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANT: HERMAN SCHOLTZ

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