Makhwelo v Minister of Safety and Security

• Jurisdiction: South Africa

Makhwelo v Minister of Safety and Security
2017 (1) SA 274 (GJ)

2017 (1) SA p274

Citation	2017 (1) SA 274 (GJ)
Case No	2013/26724
Court	Gauteng Local Division, Johannesburg
Judge	Spilg J
Heard	February 3, 2015
Judgment	February 3, 2015
Counsel	B Lesomo (attorney) for the applicant.; B Dlamini for the respondent.

Flynote: Sleutelwoorde B

State — Actions by or against — Actions against — Notice — To be served within six months of debt sued on becoming due — Unlawful arrest and detention — When debt due — Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(2).

Headnote: Kopnota

C The Minister of Safety and Security's servants arrested and detained plaintiff for over a year, then withdrew the charges against him and released him.

Plaintiff then gave notice of his intention to proceed against the Minister (s 3(2) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002), and served summons. He asserted he had been unlawfully arrested and detained, and claimed damages.

D The matter proceeded toward trial and a pre-trial conference was held, at which plaintiff indicated that he would amend his particulars of claim. He duly did so, to increase the damages he sought, and delivered the amended particulars about seven weeks before the start date of the trial. Then, two court days before the trial, the Minister delivered an amended plea, as well as a special plea.

E The special plea was that plaintiff's notice was defective because served out of time, and this barred him from proceeding.

Plaintiff then applied urgently for an order that the notice was competent because timeous; or failing that, for condonation.

The issues were:

•

F Whether the matter should be heard urgently. Held, that it should be (see [22] – [23] and [40]).

•

Whether the urgent court or the trial court should hear the application. Held, that the urgent court should (see [29]).

•

Whether the notice was defective. The Act says the notice must be served within six months of the debt sued on becoming due (s 3(2)). G The question with unlawful arrest and detention was whether the debt became due on arrest (the Minister's contention), or on release (plaintiff's assertion). (Plaintiff had served notice more than six months after arrest, but within six months of release.) Held, that it became due on release. Plaintiff's notice was thus valid. (See [3], [5], [16], [35], [48], [54] – [55], [58] and [64].)

H Application granted.

Cases cited

Abrahamse v East London Municipality and Another; East London Municipality v Abrahamse 1997 (4) SA 613 (SCA): referred to

Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A) ([1990] ZASCA 136): dictum at 532H I applied

Els v Minister of Law and Order and Others 1993 (1) SA 12 (C): referred to

FPS Ltd v Trident Construction (Pty) Ltd 1989 (3) SA 537 (A): dictum at 542 applied

Labuschagne v Labuschagne; Labuschagne v Minister van Justisie 1967 (2) SA 575 (A): J dictum at 583D applied

2017 (1) SA p275

Labuschagne v Minister of Safety and Security and Another GSJ 18769/2009: A considered

Lemue v Zwartbooi (1896) 13 SC 403: referred to

Lombo v African National Congress 2002 (5) SA 668 (SCA): referred to

Mabaso v Felix 1981 (3) SA 865 (A): referred to

Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA): referred to B

Masuku and Another v Mdlalose and Others 1998 (1) SA 1 (SCA): referred to

Matthews and Others v Young 1922 AD 492: referred to

Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A): referred to C

Minister of Safety and Security v Seymour 2006 (6) SA 320 (A) ([2007] 1 All SA 558): referred to

Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A): referred to

Ngcobo v Minister of Police 1978 (4) SA 930 (D): referred to

Protea International (Pty) Ltd v Peat Marwick Mitchell & Co 1990 (2) SA 566 (A): referred to D

Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A): referred to

Takawira v Minister of Police [2013] ZAGPJHC 138: referred to

Thompson and Another v Minister of Police and Another 1971 (1) SA 371 (E): referred to

Truter and Another v Deysel 2006 (4) SA 168 (SCA) ([2006] ZASCA 16): dictum in para [16] applied E

Unilever Bestfoods Robertsons (Pty) Ltd and Others v Soomar and Another 2007 (2) SA 347 (SCA): referred to

Zealand v Minister of Justice and Constitutional Development and Another 2008 (4) SA 458 (CC) (2008 (2) SACR 1; 2008 (6) BCLR 601; [2008] ZACC 3): referred to. F

Legislation cited

The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(2): see Juta's Statutes of South Africa 2015/16 vol 1 at 2-826.

Case Information

B Lesomo (attorney) for the applicant. G

B Dlamini for the respondent.

An urgent application to condone late delivery of a notice under s 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002. H

Order

(a)

It is declared that the notice of intention to institute legal proceedings against the respondent in terms of s 3(a) of the I Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 was timeously given and, if I am wrong, that condonation is given for the late delivery of such notice in terms of the said Act;

(b)

The effect of this order is that it disposes of the first special dilatory plea;

(c)

The respondent is to pay the applicant's costs of the application. J

2017 (1) SA p276

Judgment

Spilg J: A

The application

[1] This is an urgent application to condone the late delivery of a notice of intention to institute legal proceedings against the Minister of Police under the dispensation provisions of s 3(4)(a) of the Institution of B Legal Proceedings against Certain Organs of State Act 40 of 2002 (the Act).

[2] The matter is claimed to be urgent because the trial is set down for the following day.

Background

C [3] The applicant alleges that he was unlawfully arrested and detained by members of the South African Police Service. The arrest was effected on 10 March 2012 and he was detained for over a year until April 2013 when charges were withdrawn and he was released.

[4] He also claims that as a consequence he lost employment and hence D his salary during the period of his detention.

[5] On 20 June 2013 the applicant gave notice of his intention to institute legal proceedings in terms of s 3(2)(a) of the Act. The summons was subsequently served on 23 July 2013.

The proceedings E

[6] The plaintiff's summons contains two distinct claims, the first for unlawful arrest and detention (claim A) and the other for special damages arising from the loss of income sustained while in detention (claim B).

F [7] Initially the amount under claim A was for R1 825 000 and under claim B for R44 208. Pursuant to a notice, the particulars were formally amended on 9 December 2014 and the amount for claim A was increased to R7,84 million reckoned at damages sustained of R20 000 for each day in detention.

G [8] The original plea consisted of bald denials and no grounds were set out to justify the arrest and continued detention of the applicant.

[9] In para 11 of the original particulars of claim the applicant alleged that the s 3 notice of institution of legal proceedings had been properly given and attached a copy of the notice. These allegations were H responded to by way of a rolled up plea resulting in the applicant not knowing whether the respondent denied that any notice had been given, or that the notice given was not the one attached to the claim or was not received on the date alleged. The plea therefore offended the requirement that a denial must be unambiguous. See FPS Ltd v Trident Construction (Pty) Ltd 1989 (3) SA 537 (A) at 542.

I [10] A pre-trial conference was held on 4 December 2014. The applicant indicated that he would be amending the particulars of claim and the respondent confirmed that it would effect consequential amendments to its plea. The respondent did not indicate that it was proposing to effect substantial amendments to its own plea or that it would be introducing special pleas. Although not recorded in the pre-trial minute it appears to

2017 (1) SA p277

Spilg J

be common cause that the respondent requested of the plaintiff a copy of A its s 3(a) notice. As indicated earlier this document had been attached to the original summons.

[11] The amended particulars were filed, subsequent to which a completely revised plea was served just before 13h00 on Friday 23 January 2014. The amended plea contained two special pleas which addressed B matters unaffected by the amendments. The special pleas therefore did not arise as a consequence of any amendment to the particulars of claim. The plea also substituted the bare denial of a wrongful arrest and detention with a confession and avoidance plea which justified the applicant's arrest and detention on the ground that 'he was reasonably suspected of having committed the offence of murder and armed C robbery'.

[12] The first special plea averred that the applicant had failed to give the statutory notice within the six-month period required under s 3(2)(a) of the Act and that therefore the claim fell to be dismissed. The second special plea averred that the National Prosecuting Authority should have D been joined.

[13] The amended plea was served two court days before the trial date. The applicant took the position that it was entitled to seek an urgent order condoning the late delivery of the statutory notice.

[14] Instead of bringing the application before the trial court, the E applicant believed that the urgent court could make a determination and if successful he could then proceed to trial. The...