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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASENUMBER: 046797/17

Not reportable

Not of interest to other judges

Revised.

16/03/2018

In the matter between:

THULANI LINDELANI LUSHABA                                                                            Applicant

And

THE MINISTER OF POLICE                                                                              Respondent.

 

JUDGMENT

Molahlehi J

1. This is an application for condonation for the failure by the applicant to give the respondent, organ of the state notice contemplated in section 3 (2) of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 (The Institution of Legal Proceedings) within the prescribed period by the legislation.

2. The applicant alleges in his founding affidavit in support of this application that he was arrested and detained by members of the South African Police Services at Eldlorado Park Police Station, Johannesburg on 28 June 2015. He was arrested for impersonating a police officer and being in possession of stolen goods and detained for a period of two years and three months.

3. In the particulars of claim he states that he was arrested for robbery with “aggravating circumstances, possession of hijacking vehicle and possession of firearm." He further states that he was detained for two years and four months by members of the South African Police Services.

4. He was acquitted on 5 September 2017 and on 10 October 2017, he approached his attorney of record for legal advice.

 

The reason for the delay.

5. The reason for the delay according to the applicant is because he has "no legal training whatsoever and was not aware of the existence of s 3 (4) of the Institution of Legal Proceedings Act.

 

The principles governing condonation.

6. It is trite that condonation is not a right to be asserted by the applicant who has failed to comply with time frames prescribed by the legislature or the rules. It is also trite that the court in considering an application for condonation in the context of a matter of this nature will take into account whether or not:

(a) the debt has not been extinguished by prescription,

(b) a good cause exist for the failure by the applicant to serve the classic notice to the defendant and

(c) the respondent would not be unreasonably prejudiced by the failure. 

7. As stated above the application was unopposed. It therefore follows that the allegations made by the applicant in the founding affidavit at this stage remains undisputed. The debt has not been extinguished by prescription and in the absence of any input from the respondents there seems to no basis to conclude that it will suffer prejudice if condonation is to be granted to the applicant.

8. In the circumstances I am of the view that it would be in the interest of justice that condonation should be granted.

 

Order

9. In the circumstances the following order is made:

1. The condonation for the late filing of the notice in terms of section 3 (4) (a) and (b) of the Institution of Legal Proceedings against certain Organs of the State Act 40 of 2002 is granted.

2. The applicant is granted leave to proceed with his action against the Respondent.

3. There is no order for costs.

 

                        ___________

E Molahlehi

Judge of the High Court; Johannesburg

 

 

Representation:

Counsel for the Applicant:  Mr. V Vuza

Instructed by:  Vuza Viwe Attorneys.

Counsel for the Respondent:  No appearance

Heard on:  16 February 2018

Delivered on: 16 March 2018

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