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: 2016/19414

In the matter between:
MOTLADILE JOHN MOKGOTO	Applicant
and
THE MINISTER OF POLICE	1st Respondent
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS	2nd Respondent

JUDGMENT
Adam AJ:
[1].	In this application the applicant, Mr Motladile, 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 applicant further seeks costs on the party and party scale against the first and second respondents in the event that the application is unopposed. Alternatively, costs against the first and second respondents on an attorney and client scale in the event that they oppose this application as well as interest on the taxed or agreed costs.

[2].	The issue to be considered is whether condonation should be granted or whether the matter has prescribed as contended by the respondents in their answering affidavit. 

Background
[3].	The applicant was arrested on 15 May 2013 at or near Randfontein Police Station by members of the South African Police Service (SAPS), allegedly for corruption. The applicant was detained and appeared for the first time in the Randfontein Magistrates’ Court on 17 May 2013. He was remanded in custody for a formal bail application until 24 May 2013 on which date he was released on bail of R1500.

[4].	The applicant alleges that he consulted with his legal representatives sometime on 1 October 2015 after he received correspondence dated 26 August 2015 from the Deputy Director of Public Prosecutions, which stated that prosecution is declined.

[5].	The applicant issued summons on 7 June 2016 and it was served on the respondents’ legal representatives on 14 June 2016. The amount claimed in the summons is R1.5 million in respect of wrongful and unlawful arrest, wrongful and unlawful detention and contumelia as well as deprivation of freedom and discomfort. 

[6].	The respondents raised a special plea of prescription which relates to the date on which the alleged unlawful arrest and detention took place i.e. 15 May 2013. According to the respondents the claim should have been brought on or before 15 May 2016. 

[7].	The notice in terms of section 3 (2) of the Legal Proceedings Act was served on the first and second respondents on 12 October 2015 and 25 February 2016 respectively. On 10 February 2016, the first respondent acknowledged receipt of the notice and advised the applicant that the notice does not comply with The Legal Proceedings Act. The applicant launched this application for condonation on 5 August 2019 (more than three years later).

Condonation
[8].	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 its intention to institute 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 (one); 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. 

[9].	Section 3 (4) states:
(a)	if an organ of state relies on the creditor’s failure to serve a notice in terms of subsection (two) (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.

[10].	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 
[11].	For the court to be satisfied that condonation may be granted, it must be convinced that the claim has not prescribed. It will serve no purpose if the claim is extinguished by prescription and condonation is nevertheless granted. 

[12].	As indicated above, the applicant issued his notice on 12 October 2015 and 25 February 2016 on the first and second respondents respectively. 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. Mr Sineke, on behalf of the applicant, argued that the debt had not been extinguished by prescription because the Director of Public Prosecution, Gauteng Local Division only declined to prosecute on 26 August 2015. He submitted that he was unaware which organ of state to bring the claim against and further that he could not bring the malicious prosecution claim against the second respondent without receiving the notice on 26 August 2015. He submitted that the debt only became due after the applicant’s acquittal on 26 August 2015.

[13].	It is crucial for this court to determine whether prescription started to run on 15 May 2013 which is the date of the arrest alternatively, on 26 August 2015 which is the date of the acquittal. 

[14].	Section 12 of the Prescription Act  is relevant and reads:
‘ 12 When prescription begins to run-
(1)	subject to the provisions of subsections (two) and (three), prescription shall commence to run as soon as the debt is due.
(2)	If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.
(3)	A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: provider that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.’ 
	
[15].	Nothing in the papers demonstrates that the applicant was wilfully prevented from coming to know about the existence of the debt. The applicant certainly knew the debtor and the facts from which the debt arose all that was argued was that he had to wait for his acquittal in order to incorporate the claim for malicious prosecution. It must be pointed out that the combined summons does not incorporate a claim for malicious prosecution but only claims for unlawful arrest and detention, contumelia as well as deprivation of freedom and discomfort. 

[16].	Moseneke J, as he then was, in an unreported judgement Eskom v Bojanala Platinum District Municipality are relevant: 
‘[16] in my view, there is no merit in the contention advanced on behalf of the plaintiff that prescription began to run only on the date the judgement of the SCA was delivered. The essence of this submission is that a claim debt does not become due when the facts from which it arose unknown to the claimant, but only when such claimant has acquired certainty in regard to the law and attendant rights and obligations that might be applicable to such a debt. If such a construction were to be placed on the provisions of section 12 (three) grave absurdity would arise. These provisions regulating prescription of claims would be rendered nugatory and ineffectual. Prescription periods would be rendered elastic, open ended and contingent upon the claimant’s subjective sense of legal certainty. On this contention, every claimant would be entitled to have legal certainty before the debt it seeks to enforce becomes or is deemed to be due. In my view, legal certainty does not constitute a fact from which a debt arises under section 12 (3). The claimant cannot blissfully await authoritative, final and binding judicial pronouncements before its debt becomes due, or before it is deemed to have knowledge of the facts from which the debt arises.’

[17].	The position is summed up succinctly by the Supreme Court of Appeal in Minister of Finance v Gore N.O where the following was said:
‘[17] This court has, in a series of decisions, emphasised that time begins to run against the creditor when it has the minimum facts that are necessary to institute action. The running of prescription is not postponed until the creditor becomes aware of the full extent of its legal rights.’

[18].	It is therefore my view that the facts from which the debt arose for the prescriptive period to start running was upon the arrest of the applicant. In his particulars of claim the applicant claims for unlawful arrest and unlawful detention and it is the date of the arrest when the first known harm became due and payable. It was not necessary to wait for the knowledge of the relevant legal conclusions or the termination of legal proceedings.

Does good cause exist?
[19].	The only reasons that appear in the applicant’s founding affidavit, at paragraph 37, 38 and 39 are that he consulted with his legal representatives in October 2015 and that was the first time that he became aware that he needed to bring an application for condonation. He fails to deal with the period from May 2013 until October 2015. However, on 15 May 2013 the applicant was aware that he was arrested by members of the South African Police Services. It must be pointed out that the applicant is a Sergeant of the South African Police Services. 

[20].	He goes on to mention in paragraph 39 that he has reasonable prospects of success in this matter. 

[21].	Importantly, the Act does not define ‘good cause’. In Silber v Ozen Wholesalers (Pty) Ltd, 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.’

[22].	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 explanation proffered by the applicant in paragraphs 37, 38 and 39 of his founding affidavit are inadequate and does not enable the court to appreciate the inordinate delay of six years. The onus lay on the applicant to show good cause for the wanton delay which he has failed to do.

Prejudice to the respondents    
[23].	The onus to show the absence of prejudice lies with the applicant. As pointed out in Madinda 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.
[24].	The applicant has dealt with prejudice in paragraphs 40, 41, 42 and 43 of his founding affidavit. He says that the arresting officers are all still employed by the South African Police Service and that the officials of the National Prosecuting Authority are also still employed by National Prosecuting Authority. He alleges that the case docket and all other relevant information is still intact and can easily be obtained by the respondents. The respondents in the answering affidavit denies these submissions and avers that these submissions  do not address the prejudice to be suffered by the respondents. The court is unable to come to a finding on the prejudice due to the conflicting submissions made by the parties.

[25].	As prescribed in section 3(4)(b) the court can only grant condonation once it is satisfied that the three requirements have been met. The contention that the six-month period started running from August 2015 lacks merit and is rejected. I therefore find that the applicant’s debt arose in May 2013 and granting him condonation for the late filing of a notice which was filed six years later will not serve the interests of justice. By the time summons was issued in June 2016 the claim had long prescribed. I agree with the submissions made by Mr Zondi on behalf of the respondents that the applicant has failed to make out a case for condonation.

[26].	In the circumstances, the application must fail.

Costs 
[27].	The respondents have been successful in opposing the application. This means that, applying the general rule, the respondents are entitled to a cost order.

[28].	I can see no reason to deviate from the general rule and cost should therefore be awarded in favour of the respondents. 

Order
In the circumstances, the following order is made:
(1)	The application for condonation 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 is dismissed with costs.

________________________________
N ADAM
Acting Judge of the High Court
Gauteng Local Division, Johannesburg

Date of hearing:  	9 March 2020
Date of judgment: 	13 March 2020

For the Applicant:  Mr W Sineke
Instructed by:  Sineke Attorneys

For the First and Second Respondents:  Adv MM Zondi
Instructed by:  The State Attorneys