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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED: YES

Date: 11 October 2021 

CASE NO:  43676/2016

 

In the matter between:

 

ERASMUS, DJ                                                                                                       First Applicant

 

ERASMUS, K                                                                                                         Second Applicant

 

ERASMUS, D                                                                                                         Third Applicant

 

and

 

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS                               Respondent

            

JUDGMENT

 

STRYDOM J:

 

[1]                    This is an opposed application for condonation for the applicants’ failure to comply with the provisions of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002 (“the Act”), in terms of sections 3(4)(a) and (b) of the Act.

[2]                    It is common cause between the parties that the applicants instituted an action against the respondent for allegedly maliciously prosecuting the first applicant on charges of possession of child pornography.

[3]                    It is common cause between the parties that the applicants did not comply with the provisions of the Act prior to the institution of the main action.

[4]                    Section 3(1)(a) of the Act provides that prior to the institution of legal proceedings against an organ of state for the recovery of a debt, notice in writing of the intention to institute such legal proceedings should be given to the organ of state. 

[5]                    In terms of section 3(2)(a) of the Act, the notice of intended legal proceedings must be given within six months from the date on which the debt became due.

[6]                    In terms of section 3(4)(b)(i) to (iii) of the Act, the court may grant condonation for a creditor’s failure to comply with the provisions of the Act “if it is satisfied” that –

6.1                  The debt has not been extinguished by prescription;

6.2                  Good cause exists for the failure by the creditor to give timeous note; and

6.3                  The organ of state was not unreasonably prejudiced by the failure to notify timeously.

[7]                    The “failure” of a plaintiff may lie in the fact that no notice in terms of the Act was given at all, alternatively, that notice was given outside the period of six months.  The date that appears on the notice which was given on behalf of the applicants is 3 June 2016.  The date stamp of the office of the National Director of Public Prosecutions shows the date of 8 June 2016.  It is common cause that the summons was served on 3 June 2016 and therefore it appears that the notice of institution of the proceedings was received by the respondent after the summons was served.  This in my mind bears no significance as the court must consider whether condonation should be granted on the basis of the late filing of a notice or the failure to give any notice.

[8]                    The notice which was given was given on behalf of three applicants and at that stage the summons which was already served also pertains to the claims of these applicants.

Chronology of events

[9]                    Before dealing with the condonation application, the chronology of events should be stated.

9.1	8 November 2010	The first applicant and one Mr Le Grange (“Le Grange”) were arrested by the SAPS on allegations of being in possession of child pornography.
9.2	10 November 2010	The two accused were released on bail.
9.3	7 June 2013	Both accused were discharged in the Magistrates Court in terms of section 174 of the Criminal Procedure Act. This date is the starting date for the 3 year applicable prescriptive period.
9.4	10 December 2013	A disciplinary inquiry proceeded against the first applicant and Le Grange.
9.5	22 January 2014	The disciplinary inquiry concluded in terms of which the first applicant was exonerated and an order was made that he should be reinstated in his post.
9.6	3 June 2016	A summons was served on behalf of the applicants.
9.7	8 June 2016	The notice of institution of proceedings against an organ of state was served.
9.8	10 August 2016	The respondent filed a plea and two special pleas alleging prescription and non-compliance with the Act.
9.9	23 November 2017	The current application for condonation was filed.

[10]                 On behalf of the respondent, it was argued that the application should be dismissed for three reasons. 

10.1               Firstly, the applicants and/or the application lacks good cause.

10.2               Secondly, if this court finds existence of good cause, the respondent would be unreasonably prejudiced if the applicants’ failure to serve notice is condoned.

10.3               Thirdly, the debt in respect of which the applicants claim is based has been extinguished by prescription as contemplated in section 3(4)(b)(i) of the Act.

[11]                 In Madinda v Minister of Safety and Security[1], the court held that the use of the word “and” instead of “or” in section 3(4)(b) is a clear indication that a court must be satisfied that all three requirements have been met.  Once it is so satisfied, the court may then exercise its discretion to grant condonation.  The requirements are conjunctive and must be met by the party seeking condonation. When exercising the court’s discretion whether condonation should be granted, the court will consider the delay in bringing the condonation application.[2]  In this instance, the condonation application was launched about 1 year and 5 months after the prescribed notice was filed.

Has the claim prescribed?

[12]                 On behalf of the applicants, it was argued that the applicants’ debt has not, for purposes of section 3(4)(b)(i) been extinguished by prescription. The debt claimed by the applicants in the main action is based on the malicious prosecution of the first applicant.  Such debt became due on termination of the criminal proceedings in favour of the first applicant on 7 June 2013 when the first applicant was discharged in the criminal court.  Summons commencing the main action was served on the respondent on 3 June 2016, within the three year prescriptive period.

[13]                 On behalf of the respondent, it was however argued that the running of prescription by service on the respondent was not interrupted as contemplated in section 15(1) of the Prescription Act 68 of 1969 (“the Prescription Act”).

[14]                 It was submitted that the Act requires a notice to be given to a debtor prior to the institution of an action and in the absence of prior notice, institution of the proceedings does not “effectively commence legal proceedings for the enforcement of the claim”.  It was submitted that such premature service does not interrupt prescription.  For this proposition, the respondent relied on the matter of Santam Insurance Company Ltd v Vilakazi[3] and on Evins v Shield Insurance Company Ltd.[4]

[15]                 The Santam matter dealt with the meaning of section 11bis(2) of the Motor Vehicle Insurance Act 29 of 1942, which determined that if a summons is served before the expiration of the specified period of 60 days, the claim is unenforceable by legal proceedings commenced thereby.  It was found that the purpose of this section was to allow the insurance company 60 days in which to consider the claim before becoming involved in litigation.  That Act did not provide for the condonation or the premature service of a summons.  A premature summons did not constitute a valid summons.

[16]                 In the case of the applicant, the Act provides for condonation.  Such condonation can be granted before or after the service of a summons.  In my view, a summons served without condonation being granted would not constitute a premature summons as such condonation can still be obtained.

[17]                 The Evins matter also does not provide authority for the respondent’s contentions.  The situation is the same as in the Santam matter, albeit that the applicable Act was the Compulsory Motor Vehicle Insurance Act, 56 of 1972.

[18]                 The applicants’ debt arose on 7 June 2013 when he was discharged in criminal court and the three year prescriptive period would have ended by 7 June 2016.  Summons was served on 3 June 2016 and therefore the action had not prescribed when this occurred.

Good cause shown

[19]                 As indicated, the prescribed six month period would have lapsed six months after 7 June 2013.  The notice, which was given on behalf of the applicants, was received by the respondent on 8 June 2016.  That is just a bit more than three years after the debt arose.  The onus rests on the applicants to explain why notice was given about 2 ½ years after the required date.

[20]                 The phrase “if the court is satisfied” in section 3(4)(b) has long been recognised as setting a standard which is a lessor standard than proof  on a balance of probabilities.  Rather it is the overall impression made on a court which brings a fair mind to the facts set out by the parties.[5] 

[21]                 At para [10] of Madinda it was found as follows:

“  ‘Good cause’ looks at all those factors which bear on the fairness of granting the relief as between the parties and as affecting the proper administration of justice. In any given factual complex it may be that only some of many such possible factors become relevant. These 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 therefor.”

[22]                 In Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd,[6] pertaining to the prospects of success, the court found as follows:

“The prospects of success of the intended claim play a significant role – ‘strong merits may mitigate fault; no merits may render mitigation pointless’.  The court must be placed in a position to make an assessment on the merits in order to balance that factor with the cause of the delay as explained by the applicant. A paucity of details on the merits will exacerbate matters for a creditor who has failed to fully explain the cause of the delay.”

[23]                 The court will now proceed to consider the reasons for the delay in giving notice of the intended legal proceedings to the respondent and thereafter consider the applicants’ prospects of success in their action.

[24]                 The reasons for the applicants’ delay were stated to be the following:

24.1               The first applicant is a lay person in matters of law (as are the second and third applicants, his wife and his son).  As lay persons in matters of law, the applicants were unaware of the provisions of the Act regarding the giving of notice of intended legal proceedings against the respondent as an organ of state.

24.2               The criminal proceedings and thereafter the disciplinary proceedings severely impacted and the life of the first applicant and he was lost as to how he should proceed with legal action.

24.3               The first applicant was represented by an attorney, Stef Kruger in the criminal case.  After he was found not guilty and discharged, Stef Kruger did not take up with the first applicant the institution of an action for damages against the respondent and the issue pertaining to the giving of notice was not mentioned.

24.4               The applicants only became aware of the provisions of the Act regarding the giving of notice when they consulted with their current attorneys who agreed to assist them on a contingency fee basis in the institution of the main action against the respondent.  The date of this consultation was not provided.

24.5               In addition, the applicants averred that they did not have the necessary funds to appoint attorneys to institute action against the respondent and that led to the agreement that the attorneys would act on behalf of the applicants on a contingency fee basis.

24.6               The first applicant also mentioned that he was subjected to a disciplinary hearing by the Department of Education on charges of misconduct for possession of child pornography which only came to an end on 5 March 2015 when he was found not guilty.  This contributed to him being emotionally and psychologically traumatised to the extent that he did not pursue a claim for damages sooner.

[25]                 On behalf of the respondent, it was argued that these reasons and explanations provided by the applicants is flawed, contradictory and insufficient to such an extent that it is an unreasonable explanation which does not cover the entire period of three years in delaying to serve a notice in terms of section 3(4) of the Act. 

[26]                 It is trite that in an application for condonation an applicant must give a full explanation for the delay covering the entire period.[7] 

[27]                 It is important to note what the applicants stated as to when they became aware of the required notice.  In paragraph 13.2.5 of the founding affidavit, it was stated as follows:

“I only became aware of the prescribed six months period through the advice of my attorneys after the period of six months had long elapsed.  Such information was not within my personal knowledge and I do not know how I would have come to the knowledge of same otherwise.”

[28]                 What the first applicant fails to state is when his current attorneys informed him that the notice is a requirement.  This was a necessary allegation as this will determine the length of the delay which called for an explanation.  What was stated by the first applicant is that he only became aware of the requirement that notice needs to be given when he went to see an attorney to institute a claim.  Clearly what has transpired was that the first applicant delayed his decision to pursue a claim to a time shortly before the claim became prescribed.  The first applicant has failed to explain what steps he has taken to obtain legal advice earlier.  If this was done, he would in all likelihood have been made aware of the requirement of a notice sooner.  In my view, considering what has transpired here, the reason for the late filing of the notice came about as a result of the delayed decision to institute action. The first applicant informed the court that he lacked the financial ability to pursue a claim funded by himself.  This may be the reason for the delay. This late decision resulted in the delay to obtain legal advice and to convince an attorney to act on his behalf on a contingency fee basis.  The court will however accept that as lay persons the applicants were not aware of the six months period within which notice should have been given. In any claim against an organ of state where a plaintiff is uncertain, or not fully informed as to his or her rights, to institute action and only do so shortly before the prescriptive period has run such plaintiff would be faced with the dilemma of being out of time to give the prescribed notice.

[29]                 The first applicant’s further reason for the delay is that he had to attend to a disciplinary enquiry and waited for the outcome.  This enquiry was already concluded on 22 January 2014.  This is 1 year and 5 months prior to notice been given.  First applicant is not a lay or unsophisticated person. Surely, after his acquittal and subsequent exoneration at the disciplinary hearing he must have considered legal action.  Yet he took no steps to obtain at least some information how to institute action for more than a year.  This supports this court’s finding that the decision to institute a claim was taken at the last moment before the claim prescribed.

[30]                 A mere allegation of emotional or psychological side effects on first applicant’s ability to make proper decisions is unconvincing. The court will accept that the prosecution must have been a traumatic experience for the applicants, but the delay in taking action was just too long for this reason to be accepted.     

[31]                 As part of ‘good cause”, the court will also have to consider the prospects of success in this matter.  The stronger the prospect of success would be, the more the court will be inclined to overlook the shortcomings in the delay explanation.  In Madinda[8], it was found that “strong merits may mitigate fault”. The court will have to consider the merits of the claim.

[32]                 The requirements for a successful claim based on malicious legal proceedings are:

32.1               The defendants (in this case the prosecutor/s who made the decision to prosecute) set the law in motion in that they instigated or instituted the proceedings;

32.2               The defendants acted without reasonable and probable cause;

32.3               The defendants acted with “malice” or animo injuriandi  that is , with the intention to injure the plaintiff; and

32.4               The prosecution failed.

[33]                 In this matter, the only contention issues will be the requirement of reasonable and probable cause, and the malice or the intent to injure when the prosecution was instituted. 

[34]                 The requirement of reasonable and probable cause, in the context of a case for malicious prosecution, means an honest belief founded on reasonable grounds that the institution of criminal proceedings is justified.  Not only must the defendant have subjectively had an honest belief in the guilt of the plaintiff, but his or her belief and conduct must have been objectively reasonable, as would have been exercised by a person using ordinary care and prudence.[9] 

[35]                 The test was stated to be as follows:

“When it is alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged.”

[36]                 The practical effect of the aforegoing test for “reasonable and probable cause” for the prosecution of a plaintiff is that the prosecutor must take such reasonable measures as could be expected of a prosecutor to inform himself or herself fully of relevant facts and circumstances.  Should the prosecutor fail to do so, the plaintiff would have discharged the onus of proving absence of reasonable probable cause by way of the second requirement of a claim for these prosecutions having been satisfied (see Moleku[10]).

[37]                 A person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself.  That is recognised by the common law principle that there should be “reasonable and probable cause” to believe that the accused is guilty of an offence before a prosecution is initiated.  The constitutional protection afforded to dignity and personal freedom (section 10 and 12 of the Constitution) reinforces this principle (see Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) at [30]).

[38]                 As far as the evidence in this matter is concerned, the applicant set out in some detail the evidence which would have been available for the Prosecuting Authority to make their decision to prosecute or not.  There is no evidence that any child pornography was found to be present on the computer of the first plaintiff.  This factor should have weighed heavily in favour of the first applicant when the Prosecuting Authority decided to continue with a case of the possession of child pornography against the first applicant.  It is however not for this court to make any definitive finding in this regard as for purposes of condonation. This court should be satisfied that on a prima facie basis, the first applicant has a reasonable prospect to prove his case of malicious prosecution.  In fact, the evidence before this court shows that the decision to prosecute the first applicant was not supported by direct evidence that first applicant was in possession of child pornography.  The two prosecutors dealing with this matter stated in the answering and confirmatory affidavits that they concluded, after perusing the docket of the matter and after consultation with witnesses, that there was a prima facie case against first applicant. Apart from this statement, they refer to no evidence whatsoever which can implicate first applicant in the crime of being in possession of child pornography. 

[39]                 Although the expression “malice” is used, what it means in the context of a claim of malicious prosecution is animus injuriandi.[11]

[40]                 In Moleku it was found as follows:

“The defendant must thus not only have been aware of what he or she was doing in instituting or initiating the prosecution, but must at least have foreseen the possibility that he or she was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his or her conduct (dolus eventualis).”[12]

[41]                 On the evidence before this court, the indications are that the two prosecutors involved, Mosikili and Marishane failed to take such reasonable measures as could be expected by a prosecutor to inform himself fully of relevant facts in proceeding with the prosecution against the first applicant.  The first applicant was prosecuted in the absence of a minimum of evidence upon which he might be convicted and any belief on the part of the prosecutors on the guilt of the first applicant was not objectively reasonable as would have been expected by a prosecutor using ordinary care and prudence.  Consequently, there was no reasonable and probable cause to justify the prosecution of the first applicant.

[42]                 Mosikili and Marishane must have foreseen the possibility that they were acting wrongfully in the absence of sufficient evidence to warrant a prosecution of the first applicant, but nevertheless proceeded to prosecute him, reckless as to the consequences of their conduct, thereby having acted animo injuriandi.

[43]                 No evidence was placed before the court to indicate that the prosecutors could reasonably conclude that the first applicant was in possession of child pornography.  If such evidence existed, one would have expected that such evidence would be led at the trial.  This never transpired.  The photographs which formed the subject matter of the prosecution against the first applicant and Le Grange on charges of possession of child pornography, were by using data recovery software, recovered by an IT specialist from the laptop computer used by La Grange and not from any computer of the first applicant.

[44]                 Accordingly, I conclude that despite the long delay in giving the prescribed notice to the organ of state, considered with the lack of an explanation for the full period of the delay, the prospects of success appears to be reasonably strong which favours a finding that “good cause” was shown by the applicants for the granting of condonation; depending on whether the respondent would not be unreasonably prejudiced by the failure to give timeous notice.

Prejudice

[45]                 The respondent contended that it would be unreasonably prejudiced if condonation is granted for the late filing of the notice.  The purpose of a notice is to forewarn the respondent of a claim which might be instituted. The warning will provide the respondent an opportunity to consider the claim and to preserve evidence.  An investigation could be done.

[46]                 In this case, evidence was lead in a criminal trial and exhibits were handed in and formed part of a record.  Although the decision to prosecute was taken many years ago, the respondent became aware of the pending action from the date of service of the summons three years after the cause of action arose.  The evidence available to the state in the matter was received in an open court and was transcribed.  The two prosecutors involved in the decision to prosecute deposed to affidavits in this application and appear to be available to testify if required.  The magistrate dealing with the matter gave a written judgment.

[47]                 The allegation that the criminal docket went missing without an indication when this transpired cannot avail the respondent with an argument that the late filing of the notice would prejudice the respondent.  The same applies in relation to the unknown whereabouts of the investigation officer Tonya Louwrence.  She resigned before the expiry of the 6 months period provided for in section 3(2)(a) of the Act.

[48]                 The court finds that the respondent was not unreasonably prejudiced by the late filing of the notice.

[49]                 The court must consider all relevant factors including the further delay in bringing the condonation application.  This aspect is not part of the “good cause” which had to be shown.  No time line is prescribed and such application should, as per CJ Rance[13], be filed “as soon as the party concerned realises that it is required. The court in CJ Rance, did not make a finding what the consequences of late filing would be, but in my view, a court will have to consider all relevant circumstances including prejudice to any party.  I am of the view that the late filing of the condonation application did not in any material manner prejudice the respondent.  Condonation for the late filing of the notice should be granted.

Costs

[50]                 The applicants were seeking condonation from this court for the late filing of the prescribed notice.  The respondent opposed the application on reasonable grounds.  The time delays in filing of the notice and the application were substantial and it was reasonable of the respondent to challenge the applicants’ condonation.  Initially the applicants in their notice of motion asked for cost to be in the cause. Later an amendment was sought and granted for cost to be paid by the respondent.  I am of the view that the cost of this application should be cost in the cause. 

[51]                 The court orders as follows:

51.1               That the applicants’ late filing of the notice of intention to institute legal proceedings to the respondent be condoned in terms of section 3(4) and 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State, Act 40 0f 2002 be condoned.

51.2               Costs of this application to be in the cause.

 

JUDGE RÉAN STRYDOM

JUDGE OF THE HIGH COURT

GAUTENG DIVISION

PRETORIA

 

Date of hearing:                              1 September 2021

Date of Judgment:                          11 October 2021

 

Appearances

For the Applicant:                          Adv. T.W.G Bester SC

Instructed by:                                 Gildenhuys Malatji Inc.

 

For the Respondent:                       Adv. K. M. Mokotedi

Instructed by:                                 State Attorney Pretoria

 

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