Mngcebele v Minister of Police

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: P Zilwa J
• Judgment Date: 31 May 2022
• Docket Number: EL 1195/2019
• Hearing Date: 19 May 2022
• Court: East London Circuit Local Division
• Citation: 2022 JDR 1573 (ECMA)

Zilwa J:

[1]

This is an application by the applicant (as plaintiff in the underlying action) seeking orders in terms of the Notice of Motion. With regard to the orders sought the Notice of Motion reads (warts and all) as follows:

"1.

Declaring that the Applicants first became aware on 17 April 2019 of the damages claim against the Respondents, arising from the wrongful and unlawful arrest and detention of the applicant on 13 May 2017 by members of the South African Police Services (SAPS) in Mdantsane, on 16 April 2019 and his malicious prosecution by the employees of the first and second respondents during May 2017 to 12 April 2018;

1.1

Alternatively; In terms of section 3(4)(a) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, the Applicant's failure to serve its notice dated 24 April 2019, in terms of Section 3(1) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 timeously, be condoned,

2.

In terms of section 3(4)(a) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, the Applicant's defective notice in terms of Section 3(1) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 be condoned;

3.

Cost of the application only in the event of the application being opposed."

[2]

The application is opposed by the first respondent only, while the second respondent has remained supine.

[3]

At the commencement of the argument the applicant's Counsel, Mr Jikwana, informed the Court that the applicant has abandoned the declaratory relief sought in paragraph 1 of the Notice

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Zilwa J

of Motion set out above and only seeks the alternative relief set out in sub-paragraph 1.1 and paragraph 2, with costs.

[4]

In his founding affidavit the applicant has stated the basis for the application to be that after summons had been issued on his behalf against the respondents (as defendants in the action) on 23 October 2019 claiming damages for "unlawful arrest and detention on 13 May 2017 by members of the SAPS and subsequent prosecution by members of the National Prosecuting Authority in collaboration with members of the SAPS during the period May 2017 to April 2018".

[5]

In their Plea dated 07 January 2020 the defendants had raised a Special Plea of non-compliance by the applicant with section 3 and 4 of the Institutions of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (The Act) on the basis that the applicant (as plaintiff) failed to serve the requisite notices in terms of the Act within six (6) months and that the notice that was served did not comply with section 3(2) of the Act.

[6]

Presently the applicant is a sentenced prisoner serving his sentence at the Wesbank Maximum Correctional Centre in East London. He contends that after undergoing what he regards as an unwarranted and unlawful arrest and detention by members of the SAPS on 17 May 2017 without a warrant of arrest at his home in Mdantsane he was detained at various detention centres for a period of eleven (11) months at the instance of various policemen and thereafter prosecuted by the members of the NPA without a reasonable or proper precause for so doing until he was acquitted and released on 12 April 2018.

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Zilwa J

[7]

He further contends that as an illiterate layperson not schooled in legal matters he had thought that the respondents' employees cannot be held delictually liable for his arrest, detention and malicious prosecution. It was only during the month of April 2018 when a fellow inmate advised him that he was a client of his (applicant's) present attorneys of record and arranged consultation with them to visit and consult with him at the detention centre on 16 April 2018. During such consultation he had narrated his arrest, detention and prosecution that had culminated in his acquittal as set out above.

[8]

He contends that after his narration to his attorney, Mr Ntshiqa, the latter had informed him that his arrest, detention and prosecution were wrongful and unlawful and that the respondents were liable to pay him for the damages suffered in respect thereof. It was only then that he became aware for the first time that he had a cause of action against the respondents and he immediately gave instructions to the attorney to institute civil proceedings against the respondents. On the basis that he had only become aware of his cause of action against the respondents on 16 April 2018 for purposes of section 3(3)(a) of the Act he seeks a declarator that his cause of action only arose on that date. Alternatively, he seeks condonation for his failure to institute the proceedings after issuing the requisite notices to the respondents within the prescribed time frames in terms of section 3(4)(a) of the Act.

[9]

The present application was precipitated by the respondent's Special Plea to the applicant's combined summons, which Special Plea is annexed to the applicant's founding papers as annexure

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Zilwa J

TN3. For reasons that will become apparent later it is essential to quote paragraphs 4 and 5 of the respondent's Special Plea referred to above. Such paragraphs read as follows:

"4.

In terms of Section 4(1)(a) of Act 40 of 2002 where the organ of state is –

4.1

the Department of Police, the notice must be sent to the National Commissioner and the Provincial Commissioner of the province in which the cause of action arose, as defined in section 1 of the South African Police Services Act, 1995; and

4.2

a functionary or institution referred to in paragraph (c) of the definition of 'organ of state', as is the National Prosecuting Authority, to the chairperson, head or chief executive officer, or equivalent officer, of that functionary or institution, or where such functionary is a natural person, to that natural person.

5.

The plaintiff has not compiled with sections 3 and 4 of Act 40 of 2002 in that he did not give any notice, whatsoever to –

5.1

the National Commissioner and the Provincial Commissioner: Eastern Cape; and

5.2

the second respondent,

within six (6) months of the amount becoming due or at all."

[10]

From the afore-going it becomes clear that one of the...