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[2017] ZAWCHC 64
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Mabaso v National Commissioner of Police and Another (23406/15) [2017] ZAWCHC 64 (2 June 2017)
Republic
of
South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
REPORTABLE
Case
No: 23406/15
In
the matter between:
Timothy
Fanfani
Mabaso Applicant
And
National
Commissioner of
Police
First
Respondent
Minister
of
Police Second
Respondent
JUDGMENT –
2 JUNE 2017
LE
GRANGE, J
:
Introduction:
[1]
The Applicant in this matter seeks the review and setting aside of
the First and Second Respondents (“the Respondents”)
failure to take a decision pursuant to having been given a notice in
terms of section 3 of the Institution of Legal Proceedings
against
certain organs of state Act 40 of 2002 (“the Act”),
including certain ancillary relief.
[2]
The review application is in terms of the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”) and premised
upon the
Applicant’s contention that the Respondents have a legal duty
in terms of the Act to take a decision to accept or
reject or
endeavour to settle its claim for damages. One of the main ancillary
relief sought by the Applicant is
inter alia
, a decelerator
directing that the Respondents have such a legal duty and for them to
take an appropriate decision.
[3] The Respondents in opposing the
relief sought have taken the view that the Act, if properly
interpreted, does not contemplate
such an obligation.
Counsel:
[4] Advocate J-H Roux, SC assisted by
P.S. Van Zyl appeared for the Applicant. Advocate K Pillay assisted
by B G Smith appeared
for the Respondents.
The Dispute:
[5] At the heart of this matter, is
the question whether the Act contemplates that a legal duty exists
upon the Respondents to respond
to a notice issued pursuant to s 3 of
the Act. If no such duty exists, it follows that the review and
ancillary relief sought
by the Applicant cannot succeed.
Factual Matrix:
[6]
The Applicant’s attorneys during June 2015 gave the First
Respondent notice, in terms of section 3(1) of the Act, of the
Applicant’s intention to institute an action for damages
against the Second Respondent (“the notice”). The facts
underpinning the Applicant’s intended claim in the action can
be summarised as follows. The Applicant in February 2015 was
at a
tavern in Gugulethu. According to him he consumed some alcohol over a
period of 2 to 3 hours. On his way home he was stopped
by traffic
officers and arrested. His car was taken to Delft Police station. He
was then taken to Mitchells Plain Police station
for a blood sample.
According to the Applicant at about 23h00 he enquired about the
possibility of being released on bail. A police
officer however
pushed him against the wall with some force. The Applicant avers as a
result of the assault he fell and broke his
right arm. The Applicant
states that he was not assisted or taken to the hospital but rather
kept overnight in a police cell. According
to the Applicant he was
released the following day on bail in the amount of R 500. The
Applicant also states that he visited a
medical doctor and certain
X-rays were taken of his arm. He was ultimately taken to Mitchells
Plain hospital for an operation.
The Applicant further states that as
a result of the assault he underwent an operation to place an
internal fixation in his right
arm. The Applicant now alleged that as
a result of the assault he suffered general damages in the amount of
R 350 000.
[7]
Counsel for the Applicant relied heavily on certain decided cases
with similar clauses in other legislation, to which I will
return,
for the general proposition that the Act if purposively interpreted,
indeed provides that a legal duty exists upon the
Respondents to take
a decision, once a s 3 notice has been delivered. It was also
contended, in the absence of any express time
limit stipulated in the
Act, a period of 30 days may be used as a guideline to the time
reasonably required for the Respondents
to make a decision. It was
further argued that the Applicant’s personal circumstances,
should be a contributing factor in
considering a purposive approach
as it will assist the vast majority of indigent claimants like the
Applicant, to a speedily resolution
of their dispute with the
Respondents.
[8] The main submissions
by the Respondents’ Counsel can be summarized as follows: in
the absence of an express provision
in the Act, there is no basis in
law or on a proper interpretation of the Act that compel the
Respondents to respond to a s 3 notice
in the Act; the case-law
relied upon by the Applicant are distinguishable and not applicable
in the present instance; the information
contained in the s 3 notice
is often inadequate for the purpose of taking an informed decision by
the Respondents on how to proceed
on an intended claim; that such an
obligation, if exists, could be subject to review under PAJA or in
terms of the principal of
legality and may result that the organ of
state will be required to defend itself in parallel litigation; a
s 3 notice may
also be served in terms of the Act on the National
Commissioner of Police in respect of the National Minister however,
the organ
of state against which the relevant claim lies in the
present instance is the Minister of Police. Despite this, the Notice
of Motion
requires a response from both Respondents. Moreover,
according to the Respondents, the Police Department simply does not
have the
resources to engage in such preliminary consultations and
investigations as such investigations do take place after summons has
been issued. At that stage legal counsel have been employed and the
underlying cause of the action and factual basis properly pleaded.
According to the Respondents, it would be at this stage where there
may be liability on the merits, the Department will take advice
from
its Counsel to make an informed decision whether to settle the claim
or not. Lastly, it was contended that there could be
no prejudice to
the Applicant whatever his financial circumstances may be, on account
of the Respondents failure to respond to
a notice as a Plaintiff is
at liberty to issue summons assuming the claim was rejected or no
mutual agreeable settlement on the
claim could be reached.
The Legal Framework:
[9] In order to determine whether the
Act contemplates that a legal duty exists upon an organ of state to
respond to a notice issued
pursuant to a s 3 notice, of the Act, it
is perhaps convenient to re-visit the relevant provisions provided as
follows:
“
3
Notice of intended legal proceedings to be given to organ of state
(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 or its intention to institute the legal proceedings
in
question; or
(b)
the
organ of state in question has consented in writing to the
institution of that legal proceedings-
(i)
without such notice; or
(ii) upon receipt of
a notice which does not comply with all the requirements set out in
subsection (2).
(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 (1);
and
(b)
briefly set out-
(i)
the facts giving rise to the debt; and
(ii) such particulars
of such debt as are within the knowledge of the creditor.
(c)
For
purposes of subsection (2) (a)-
(a) a debt may not be
regarded as being due until the creditor has knowledge of the
identity of the organ of state and of the facts
giving rise to the
debt, but a creditor must be regarded as having acquired such
knowledge as soon as he or she or it could have
acquired it by
exercising reasonable care, unless the organ of state willfully
prevented him or her or it from acquiring such knowledge;
and
(b)
a debt referred to in section 2 (2) (a), must be regarded as having
become due on the fixed date.
(4) (a) If an organ
of state relies on a creditor's failure to serve a notice in terms of
subsection (2) (a), the creditor may 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.
(d)
If
an application is granted in terms of paragraph (b), the court may
grant leave to institute the legal proceedings in question,
on such
conditions regarding notice to the organ of state as the court may
deem appropriate.”
[10] The section in question has been
in recent times the subject matter of interpretation in a number of
cases. The requirements
of s 3(4)(b) were discussed in
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) regarding
good cause and the absence of prejudice to the organ of state in
considering condonation. In
Minister of Safety and Security v De
Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA), the issue of condonation was again
under consideration in instances where no notice was given by the
creditor, or where
the notice was defective in some respect, but
where legal proceedings were instituted before the expiry of the
prescription period.
[11] At issue in this case is a
different question.
[12]
The approach to statutory interpretation was recently summarised by
the Supreme Court of Appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at paragraph [18] and restated in
Novartis
SA v Maphil Trading
2016 (1) SA 518
at paragraphs [24]-[29]. In
Endumeni
supra
at paragraph [18], the following was held :
“…
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context
it is to make a contract for
the parties other than the one they in fact made. The 'inevitable
point of departure is the language
of the provision itself', read in
context and having regard to the purpose of the provision and the
background to the preparation
and production of the document.”
[13] The case law relied
upon by the Applicant in support of its contention for a purposive
interpretation was firstly,
Mohlomi v Minster of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC). In that case the Plaintiff instituted a claim for
damages against the Minister of Defence in connection with a shooting
incident.
A special plea was raised by the Minister of Defence for
non-compliance with the requirements of s 113(1) of the Defence Act
44
of 1957, which stipulated the following:
“
No civil
action shall be capable of being instituted against the State or any
person in respect of anything done or omitted to be
done in pursuance
of this Act, if a period of six months. . . has elapsed
since the date on which the cause of action
arose, and notice in
writing of any such civil action and of the cause thereof shall be
given to the defendant one month at least
before the commencement
thereof”.
[14] The constitutional validity of
said section came under scrutiny, with regard to s 22 of the Interim
Constitution, which related
to the fundamental right “
to
have justiciable disputes settled by a court of law or, where
appropriate, another independent and impartial forum”.
[15] The Court compared s 113(1) of
the Defence Act with the provisions of the South African Police
Service Act, 68 of 1995 (“the
Police Act”). In
considering the issues it was found that s 113(1) differed
considerably to the Police Act, and the Court
came to the conclusion
that section 113(1), which provided a time limit within which
litigation may be launched was constitutionally
invalid.
[16] In the second instance reliance
was placed upon the dictum of
Mogopodi v Member of the Executive
Council of the Free State
(122/2008)
[2008] ZAFSHC 38
(13 March
2008). In that case two issues were discussed namely, (1) whether the
proper notice in terms of s 3 of the Act was in
fact furnished; and
(2) whether the requirements of the Act were complied with. The
notice in terms of s 3 of the Act was delivered
late and a letter was
sent to the Department of Education requesting condonation for the
late delivery. It appears no answer was
forthcoming. The complainant
thereafter sent a further letter and still no response was
forthcoming. The complainant then issued
summons. In para [7] of the
said judgment, it was held, that the provision of giving notice in
terms of s 3 of the Act was for
the convenience of the organ of state
to conduct proper investigations and decide whether to make payment
or defend the intended
action.
[17] The Court did not consider or
pronounce on the issue whether such organ of state is obliged to
respond to such notice.
[18] In the third instance, the
Applicant relied on case law relating to the interpretation of
certain provisions in the Road Accident
Fund Act 56 of 1996 (“the
RAF Act”). In particular reliance was placed on
Daniels and
Others v Road Accident Fund and Others (8853/2010)
[2011]
ZAWCHC 104
(28 April 2011). In that case, the Court considered the
provisions relating to the claims procedure and the functions of the
Fund
in respect of the processing and determination of claims in
terms of the RAF Act.
[19] The court made reference to s
24
of the RAF Act which
inter alia
provides that a claim for compensation in terms of the Act must be
submitted by means of a duly completed form in the prescribed
format.
The said section further requires the claim form to be completed so
as to provide the Fund with a clear reply to each applicable
question. Precise details must further be furnished by a claimant in
respect of each item in the prescribed form under the heading
'Compensation claimed’. The prescribed form includes provision
for the medical report required in terms of s 24(2)(a) of
the Act.
[22] In terms
of s 24(5), a claim form submitted by, or on behalf of a claimant in
purported compliance with the requirements of
the Act will be deemed
to have been validly completed in all respects if the Fund did not
raise any objections within 60 days of
the posting or delivery of the
form to the Fund. In these instances, proceedings for the recovery of
compensation from the Fund
may not be instituted by a claimant before
the expiry of a period of 120 days from the date on which the claim
was sent or delivered
by hand to the Fund, and before all
requirements contemplated in s 19(f) of the Act have been complied
with.
[21] The Court,
in view of the above held the following:
“
[10]
It is evident upon a consideration of the aforementioned provisions
of the Act that the compensation scheme provided thereby
contemplates
that a claimant will, when submitting a claim, provide the Fund with
sufficient relevant information to enable it
(i) to investigate
whether it is liable (in other words, whether the insured driver was
causally at fault in regard to the injuries
or death upon which the
claim is founded) and, if so, (ii) also to determine the amount of
compensation payable. The interval of
120 days that is required to
pass between the filing of a claim and the accrual of a right to the
claimant to institute action
against the Fund to enforce payment of a
claim for compensation is obviously intended to permit the Fund
sufficient opportunity
to carry out the required investigations and,
if indicated, to settle the claim, or attempt to settle it before the
institution
of litigation. In regard to the last-mentioned aspect,
the provisions of s 17(3)(b) of the Act pertinently provide that if
the
matter should go to trial, 'the court may take into consideration
any written offer, including a written offer without prejudice
in the
course of settlement negotiations, in settlement of the claim
concerned, made by the Fund ... before the relevant summons
was
served' in making a costs order.
[.
. .]
[13] The
requirements of the Act in respect of the submission of claim forms
and the provision of full information to the Fund,
as well as the
imposition of a mandatory moratorium before legal proceedings for the
recovery of compensation may be instituted,
constitute additional
limitations. A yet further and - in the context of the first and
second applicants' complaints - particularly
pertinent limitation is
the exclusion of any liability by the Fund to pay mora interest on
awards made by the court in actions
by claimants to enforce their
rights to compensation unless payment is delayed for more than 14
days after the relevant court order.
Ordinarily, a debtor
in respect of an unliquidated claim would be liable to pay interest
at the prescribed rate from the earlier
of the date of demand for
payment, or that of service of the process commencing enforcement
proceedings.
[14]
There can be no doubting therefore that the limitations of common law
and constitutional rights arising out of the aforementioned
provisions of the Act create an obligation on the Fund to diligently
investigate claims submitted to it and to determine, if practically
possible within 120 days of receipt of the claim, whether it is
liable to compensate the claimant, and, if so, in what amount.
The
Fund is obliged to conduct itself in this respect with due
recognition that its very reason for existence is 'to give the
greatest possible protection . . . to persons who have suffered loss
through a negligent or unlawful act on the part of the driver
or
owner of a motor vehicle'.
In
this connection it was observed in the majority judgment of the
Constitutional Court in Road Accident Fund and Another v Mdeyide
2011
(1) BCLR 1
(CC)
(at para 78)
that
the Fund is 'a hugely important public body which renders an
indispensible service to vulnerable members of society’.
The
majority judgment in Mdeyide reflected an acknowledgment of the
crucial importance of a 'properly administered’ Fund to
the
upholding of 'the constitutional values of human dignity, the
achievement of equality and the advancement of human rights and
freedoms'.
[15] In my
view the constitutionality of at least some of the rights-limiting
provisions in the Act mentioned earlier is predicated
on the implicit
undertaking by the state that the operation of the Act will entail
the efficient discharge by the Fund of its functions
in respect of
the processing and determination of claims. Certainly, the
justification for the limitations goes limping when the
relevant
organ of state fails properly, in faithful compliance with the Act,
to render the performance that constitutes the very
basis for
characterising the limitation as reasonable and justifiable in an
open and democratic society based on human dignity,
equality and
freedom. Recognition of that effect inexorably impels the conclusion
that a materially inadequate performance by the
Fund of the relevant
statutory functions would amount to conduct that would unjustifiably
infringe the affected limited rights.
At the same time, any such
failure by the Fund to fulfil its statutory object would evidence a
breach by the state of its obligations
in respect of other rights,
like equality, human dignity, security of the person, health and
social security, which the Act is
meant to represent a means of
advancing and protecting.”
Discussion:
[22]
On a plain reading of s 3 of the Act, it is evident that a claimant
who is referred to as a “creditor” is obliged
to give
notice of its proposed intention to institute legal proceedings
against an organ of state. In reading the particular provision
as a
whole and having regard to its context, there can be no doubt that
the Legislature intended to ensure that the organ of state
is given
an opportunity to investigate the claims in terms of its own internal
rules and to consider them responsibly.
[23] The question now is whether in
the context in which the provision appears it is apparent that the
purpose to which it is directed,
a legal duty is deemed to exist on
the Respondents that compels them, after such investigation and
before getting embroiled in
litigation at public expense, to take a
decision whether to accept or reject or endeavour to settle such
claim for damages. In
answering this question consideration must be
given to the objective meaning of the words, its context, the
intention of the Legislature
and the underlying purpose of the Act.
In this regard see:
Novartis
supra
at paragraph [27].
[24] The case law relied upon by the
Applicant in support for its proposition is in my view
distinguishable to the enquiry in the
present instance. In the
Mohlomi
matter, the enquiry was solely premised on whether the
requirement limiting the time during which litigation may be launched
was
constitutional. It was in that context that the Court made the
remark that it will be in the public’s interest that
procrastination
needs to be curbed. It further commented on the
demand for prior notification and the logistical difficulties which
the State had
to deal with. Moreover, mention was made that the organ
of state ought to be afforded the opportunity to investigate the
claim,
or consider it upon receipt of the notice before getting
embroiled in litigation at public expense. The existence of a legal
duty
to do so was however not discussed or decided upon. (See:
Mohlomi
supra
at paragraph [9]). It also needs to be
mentioned that
Mohlomi
was decided approximately five years
prior to the enactment of the current Act under consideration. If the
Legislature wanted to
place such a legal duty on the Respondents it
could have expressly stated so in the Act.
[25] In the
Mogopodi
matter,
the reliance by the Applicant on paragraph [7] of the judgment for
support that there is a legal duty on the organ of state
to respond
to the said notice, is unconvincing. It is correct that it was
noted by the Court that the provision of giving
notice in terms of
section 3 is for the convenience of the organ of state to conduct
proper investigations and decide whether to
make payment or defend
the intended action. It does not follow that if such a duty to
investigate exists there is an equal obligation
on the organ of state
to respond to the said section 3 notice before summons had been
issued.
[26] The underlying objective purpose
of the notice is clearly for the convenience of the organ of state.
On a proper reading of
the judgment, the Court could not have
contemplated that the Act read as a whole places such a duty on the
organ of state as it
was in the first place never asked to do so and
secondly no time frame within which such response must be complied
with was ever
considered.
[27] The
Daniels
case relied
upon by the Applicant is in my view equally of no assistance for the
Applicant’s case. The
Daniels
matter dealt with the RAF
Act, and the provisions and objectives of the RAF Act, clearly differ
in substance and form, from the
Act under consideration.
[28] The object of the Fund is the
payment of compensation in accordance with the RAF Act for loss or
damage wrongfully caused by
the driving of motor vehicles. On a
proper reading of the RAF Act, one of the Fund’s powers is to
investigate and settle
claims subject to the Act, arising from loss
or damage caused by the driving of a motor vehicle whether or not the
identity of
the owner or the driver thereof, or the identity of both
the owner and the driver thereof, had been established. Moreover, in
terms
of
s 24 of the RAF Act, a claimant is
obliged to furnish precise details when submitting a claim in the
prescribed claim form.
[29]
In terms
of the RAF Act, such claim form will be deemed to have been validly
completed in all respects if the Fund does not raise
any objections
within 60 days of the posting or delivery of the form to the Fund.
Proceedings for the recovery of compensation
from the Fund may not be
instituted by a claimant before the expiry of a period of 120 days
from the date on which the claim was
sent or delivered by hand to the
Fund, and before all requirements contemplated in the RAF Act have
been complied with. It was
in the context of these specific
provisions that the Court found in Daniels that:
‘
[14]...
There
can be no doubting therefore that the limitations of common law and
constitutional rights arising out of the aforementioned
provisions of
the Act create an obligation on the Fund to diligently investigate
claims submitted to it and to determine, if practically
possible
within 120 days of receipt of the claim, whether it is liable to
compensate the claimant, and, if so, in what amount…’
[30] It is evident that there is a
marked distinction between the RAF regulations and the provisions of
the Act under consideration.
The RAF Act, in no uncertain terms
places a duty on the Fund to consider a claimants claim and to either
reject and furnish reasons
for such rejection or to give directions
on which further or additional information may be required. There is
no equivalent or
corresponding provision in the Act.
[31] In considering whether more than
one meaning may be possible, the arguments advanced by Counsel for
the Respondents that on
a proper consideration and construction of
the Act there is no obligation on the Respondents to answer to a
notice issued in terms
of s 3, is not without merit. In terms of
section 3(2)(b) of the Act the only substantive information that a
notice must include
is a “brief” setting out of: (i) the
facts giving rise to the debt; and (ii) such particulars of such debt
as are within
the knowledge of the creditor. It cannot be disputed
that the notice contemplated under section 3 provides an organ of
state with
significantly less information than what ordinarily would
be required in a plea. In fact Rule 18(4) of the Uniform Rules of
this
Court provide that:
“
18(4
)
Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies for his claim,
defence
or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto
.”
[32] As regards to claims for
damages, in terms of Rule 18(10) of the Uniform Rules, the following
is provided:
“
A
plaintiff suing for damages shall set them out in such manner as will
enable the defendant reasonably to assess the quantum thereof:
Provided that a plaintiff suing for damages for personal injury shall
specify his date of birth, the nature and extent of the injuries,
and
the nature, effects and duration of the disability alleged to give
rise to such damages, and shall as far as practicable state
separately what amount, if any, is claimed for-
(a) medical costs and
hospital and other similar expenses and how these costs and expenses
are made up;
(b) pain and
suffering, stating whether temporary or permanent and which injuries
caused it;
(c)
disability in respect of-
(i) the earning of
income (stating the earnings lost to date and how the amount is made
up and the estimated future loss and the
nature of the work the
plaintiff will in future be able to do);
(ii) the enjoyment of
amenities of life (giving particulars);
and stating whether
the disability concerned is temporary or permanent; and
(d) disfigurement,
with a full description thereof and stating whether it is temporary
or permanent.”
[33] The contention by the
Respondents that the notice requirements of section 3 are inadequate
for the purposes of taking an informed
decision, cannot be rejected
as mere conjecture or speculation. Moreover, if the provision
presupposes that there is an obligation
to make a decision on such
limited facts it will surely deprive an organ of state who may seek
to defend the matter, after summons
had been issued, to object in
terms of the Court Rules against inadequate or inappropriately
drafted pleadings. To this extent
a reading in that the Respondents
are obliged to make an informed decision on such limited facts will
clearly undermine the apparent
purpose of the section. Moreover, the
fact that the Act does not prescribe any time limits for a response
must be a further indicator
that the Legislature did not intend that
a response is required in these circumstances.
[34] A further and very important
consideration which in my view detracts from the proposed
interpretation sought by the Applicant
is that any resultant decision
or failure to take a decision after such notice had been served,
could be subjected to review proceedings
under PAJA or in terms of
the principle of legality. Such proceedings may result in unintended
consequences. The Respondents may
be subjected to parallel litigation
which would inevitably compromise the interest of justice and be
detrimental to the speedy
resolution of these cases.
[35] Furthermore, the Respondents
complaint that the taking of a decision in response to every notice
received would place an extreme
administrative burden on the
Respondents’ Departments, cannot be ignored. According to the
Respondents such steps would require
withdrawing police officers from
other duties to engage in preliminary consultations and
investigations. This in turn could compromise
the general policing
functions. Furthermore, resources would be spent on an investigation
in circumstances where a claim is ultimately
not pursued. The
Respondents stated that such investigations do take place after
summons had been issued, at which stage Counsel
would have been
appointed and the underlying cause of action and factual basis for it
would have been properly pleaded. In
most instances, where
there is merit in the complaint, the Respondents will take advice
from Counsel which advice will inform their
decision as to whether to
settle a claim or not. These considerations cannot merely be rejected
as fanciful or unreasonable.
[36]
In weighing up all the relevant factors pertaining to the process of
attributing meaning to the words in the Act, and having
regard to the
context and purpose of the
provisions, I am satisfied that the Legislature did
not intend that a
legal duty exists on the Respondents to take a decision to accept or
reject or endeavour to settle its claim
for damages pursuant to a s 3
notice.
[37]
It follows that the declaratory relief sought by the Applicant cannot
succeed. The review application also falls to be
dismissed.
[38]
In the result the following order is made.
The
Application is dismissed with costs.
________________________
LE
GRANGE, J
For
the Applicant
: Adv JH Roux S.C
assisted by PS van Zyl
For
the Respondents
: Adv K Pillay
assisted by BG Smith
Date
(s) of Hearing
: 16
February 2017
Judgment
delivered on
: 02 June
2017