About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2010
>>
[2010] ZAGPJHC 61
|
|
Cochrane v City of Johannesburg (A5044/09) [2010] ZAGPJHC 61; 2011 (1) SA 553 (GSJ) (18 August 2010)
Links to summary
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
APPEAL
CASE NO :
A5044/09
DATE:
18/08/2010
In
the matter between:
HENRY
GEORGE DAVID COCHRANE
Appellant
(Respondent
a quo)
and
THE
CITY OF JOHANNESBURG
Respondent
(Applicant
a quo)
JUDGMENT
BAVA
AJ
:
This is
an appeal to the Full Bench of the South Gauteng High Court in terms
of Section 20(4)(b) of the Supreme Court Act, Act
No. 59 of 1959, as
amended, against the whole of the judgment and order of Tsoka J,
delivered on 6 August 2008. In terms of the
said judgment the
Appellant’s Summons and Particulars of Claim were set aside in
terms of Rule 30(3) of the Uniform Rules
of Court together with
costs.
The
Appellant was granted leave to appeal to the Full Bench of the South
Gauteng High Court on 3 November 2009.
The
essence of the appeal is that the Court
a quo
was incorrect
in setting aside the Appellant’s summons in terms of Rule 30
of the Uniform Rules of Court where the Appellant
failed to serve a
notice, within a six month period after the debt became due, on the
Respondent in terms of Section 3 of the
Institution of Legal
Proceedings Against Certain Organs of State Act, Act 40 of 2002
(hereinafter referred to as “the Act”).
The
Appellant issued a summons against the Respondent for what he
alleges was his unlawful arrest and detention, unlawful assault
and
defamation, all of which is alleged to have occurred on 4 August
2005.
On 17
July 2007, the Appellant gave notice to the Respondent of its
intention to institute legal proceedings in terms of Section
3(2) of
the Act. Thus, the said notice was give more than the prescribed 6
months after the incident giving rise to the debt
occurring.
Sections
3(1) and (2) of the Act read:
“
3.
Notice
of intended legal proceedings to be given to organ of State
No
legal proceedings for the recovery of a debt may be instituted
against an organ of State unless –
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
the
organ of State in question has consented in writing to the
institution of that legal proceedings –
without
such notice; or
upon
receipt of a notice which does not comply with all the
requirements set out in subsection (2).
A
notice must –
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
briefly
set out –
the
facts giving rise to the debt; and
such
particulars of such debt as are within the knowledge of the
creditor.
...
...”
After
notice was given in terms of Section 3(2) of the Act, the Respondent
did not object and/or complain and/or raise any plea
of
non-compliance with the provisions of the Act nor did the Respondent
claim any prejudice as a result of the late issuing of
the notice.
On 21 May
2008 the Appellant issued its Summons and Particulars of Claim. On 5
June 2008, the Respondent indicated by way of notice
that the
Appellant’s summons constituted an irregular step and was
defective. The Respondent afforded the Appellant the
opportunity of
withdrawing its Summons in terms of Rule 30(2)(b) of the Uniform
Rules of Court. The Respondent indicated in
its Rule 30(2)(b)
notice that the Appellant’s Summons constituted an irregular
step and was defective in that:
“
1. The
Plaintiff failed to comply with the notice requirements in Section
3(2) of the Institution of Legal Proceedings Against Certain
Organs
of State Act, 40 of 2002 (“the Act”) necessary before
legal proceedings for recovery of a debt may be instituted
against an
organ of State in that it served notice on the Defendant more than
six months after the date on which the debt became
due;
2. The
organ of State in question has not consented in writing to receipt of
the late notice in terms of Section 3(1)(b)(ii) of
the Act;
3. The
Plaintiff has not applied for condonation of the late notice in terms
of Section 3(4) of the Act.”
On 10
July 2008, the Respondent served an application in terms of Rule
30(1) of the Uniform Rules of Court in terms of which it
sought an
order:
“
1. Declaring
that the Summons and Particulars of Claim of the Respondent are
defective.
2. Striking
out and/or setting aside the Respondent’s Summons and
Particulars of Claim on the basis of the non-compliance
with the
pre-emptory (sic) requirements of The Institution of Proceedings
Against Certain Organs of State Act, 40 of 2002.
3. Costs.
4. Further
or alternative relief.”
The
application in terms of Rule 30(1) was supported by an affidavit
deposed to by Maushami Chetty, an attorney representing the
Respondent in the matter.
While the
Respondent chose to file an affidavit, this was not strictly
necessary. In
Chelsea Estates and Contractors CC v Speed-O-Rama
1993 (1) SA 198
at 202 E-F, Mullins J stated:
“
Defendant’s
notice in terms of Rule 30 certainly did not require to be supported
by an affidavit. All that Rule 30(2) requires
is that the notice
must specify the particulars of the irregularities complained of. It
is analogous to an exception. Nor does
Rule 30 provide for any form
of reply.”
In this
affidavit, Ms Chetty indicates that despite the Appellant being
afforded an opportunity to cure the defect of its non-compliance
on
the 11
th
of June 2008, the Appellant failed to avail
itself of this opportunity and the application was accordingly
served which was heard
by Tsoka J on 29 July 2008.
On 6
August 2008, Tsoka J granted the order in favour of the Respondent
in terms of Rule 30(3) by setting aside the Appellant’s
Summons and Particulars of Claim together with costs.
The
Appellant contends that the Respondent’s decision to follow
the procedure in Rule 30 was misplaced. Mr Joubert who
appeared on
behalf of the Appellant argued that the relief claimable under Rule
30 of the Uniform Rules of Court was not applicable
or competent in
the current case. He argued that in view of the fact that the Court
has a discretion to grant condonation in
respect of the Appellant’s
failure to comply with the requirements of Section 3(2) of the Act,
that the appropriate procedure
that the Respondent ought to have
followed was to have raised a special plea of non-compliance with
Section 3(2) of the Act.
Mr
Joubert relied on the judgment of the Supreme Court of Appeal in the
case of
Minister of Safety and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA
457
(SCA) for the interpretation of Section 3 of the Act.
Lewis JA
in
Minister of Safety and Security v De Witt
,
supra
,
after considering the purpose of the Act, stated at page 459,
paragraph [4], regarding Section 3(4) of the Act and the aspect
of
condonation, as follows:
“
As
I have said, the way in which the legislature has sought to avoid
drawing a hard-and-fast rule that may cause undue hardship
to a
plaintiff is to make provision for time limits, and notices of
intention to sue, but also to enable a court to condone a failure
to
comply with the requirements. Section 3(4) gives the court a
discretion to condone non-compliance, subject to three requirements
being met.”
The three
requirements referred to by the Supreme Court of Appeal are set out
in Section 3(4)(b) of the Act.
Section
3(4) of the Act reads as follows:
“
3. Notice
of intended legal proceedings to be given to organ of State.
....
....
....
(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.
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.”
If
an application is granted in terms of paragraph (b), the court may
grant leave to institute the legal proceedings in question,
on
such condition regarding notice to the organ of State as the court
may deem appropriate.”
Lewis JA
indicated further at paragraph [7] of the judgment that De Witt met
an objection to his summons by way of a special plea.
In argument
and in the Respondent’s heads, Ms Goedhart conceded, correctly
in my view, that the Supreme Court of Appeal
held in
Minister of
Safety and Security v De Witt
that an application for
condonation for failure to comply with Section 3(1) of the Act may
be brought after the institution of
proceedings. Furthermore, Ms
Goedhart argued that the SCA has held that the appropriate course
for Defendant to adopt where
a creditor has failed to give the organ
of State in question a notice in writing as contemplated in Section
3(1) and (2) of the
Act is to raise this defence by way of special
plea and not in terms of Rule 30(2)(b) of the Uniform Rules of
Court.
Notwithstanding
the aforegoing Ms Goedhart argued that when the matter came before
Tsoka J, a defect going to the root of her
claim could be attacked
under Rule 30. Ms Goedhart relied on the judgment of Van der Merwe
J in
Deputy Minister of Tribal Authorities and Another v Kekana
1983 (3) 492 at 495 H – 496 B where it states:
“
According
to the clear wording of the Rule, any irregular proceeding may be
attacked under this Rule and the Court is empowered
to set aside such
irregular proceeding. I can think of no reason in principle why a
defect going to the root of the claim cannot
be attacked under this
Rule...”
In my
view, the portion relied on by Ms Goedhart was
obiter.
The
authors in Erasmus,
Superior Court Practice
, Service 23, 2005
B1-191 indicate in a footnote to the commentary as follows:
“
In
view of the provisions of Rule 18(12) which were inserted on 27
November 1987, it is doubtful whether the obiter judgment is
still
applicable.”
I am of
the view that the learned authors are correct in this regard and
that the use of Rule 30 in dealing with the defect going
to the root
of the claim is not apposite since the introduction of the
provisions of Rule 18(2) of the Uniform Rules of Court
on 27
November 1987.
In
response to the Court’s enquiry as to whether the Appellant’s
failure to comply with the notice requirements in
terms of Section
3(2) of the Act was a special defence analogous to a defence of
prescription and that it ought to be pleaded
as such, Ms Goedhart
argued that it should still have been heard in terms of Rule 30. Mr
Joubert referred to the case of
De Polo v Dreyer and Others
1989 (4) SA 1059
(W) in support of the contention that special
defences should be raised by way of a special plea. Morris AJ
clearly indicated
that such special defences should be raised by way
of special plea where he indicated at 1061 E of the judgment as
follows::
“
...
Usually, as will appear from a case to which I was referred in
argument and which I shall discuss later, a special defence such
as
prescription, want of locus standi, prematurity or the like, is
raised by way of a special plea, and may be subject to a replication,
thereafter to be dealt with perhaps under Rule of Court 33,
especially Rule 33(4).”
The
Respondent, having conceded that an application for condonation
could be brought after institution of proceedings and that
the Rule
30(2)(b) procedure is not apposite, sought to convince the Court
that, despite the fact that the Appellant was given
the opportunity
to seek condonation on the 5
th
of June 2008 when the Rule
30(2)(b) application was served and again on the 11
th
of
June 2008 when the attorneys engaged each other, he failed to do so.
Ms
Goedhart argued that the application for condonation was not
expeditiously made and in this regard relied on the case of
Minister
of Agriculture and Land Affairs v C J Rance
2010 (4) SA 109
(SCA) at 118 B where the Supreme Court of Appeal reiterated that
condonation must be applied for as soon as the party concerned
realises that it is required. Ms Goedhart argued that, what she
terms, the
“Appellant’s inertia”
in seeking
condonation must count against the Appellant.
Ms
Goedhart also sought to convince this Court that the Respondent was
suffering prejudice and relied on the affidavit of Ms Chetty
to
substantiate the argument relating to prejudice.
I am not
convinced that the grounds for condonation should be argued and
determined at the hearing of a Rule 30 application.
Mr Joubert
indicated that while the wording of paragraph 19 of the Particulars
of Claim was not a modicum of clarity insofar
as it sought to allege
that condonation will be sought, he indicated that it was,
nevertheless, an allegation which the Respondent
had to deal with by
means of a special defence. I am inclined to agree with this
submission.
The
Supreme Court of Appeal in
Minister of Safety and Security v De
Witt
,
supra
, clearly indicated at paragraph [10] on pages
461 and 462 that an application for condonation is only required
where the organ
of State makes objection to the absence of the
notice and it stated as follows:
“
Thus
either a complete failure to send a notice, or the sending of a
defective notice, entitles a creditor to make the application.
Even
this is qualified; it is only ‘if an organ of State
relies
on a creditor’s failure to serve a notice’ that the
creditor may apply for condonation. If the organ of State makes
no
objection to the absence of a notice, or if valid notice, then no
condonation is required. In fact, therefore, the objection
of the
organ of State is a jurisdictional fact for an application for
condonation, absent which the application would not be competent.”
Mr
Joubert relied on this passage and it is my view that unless there
is an objection by the organ of State, it is not competent
to apply
for condonation. Ms Goedhart indicates that the Respondent had
objected to the fact that the notice was not timeously
given by the
Appellant, as required by Section 3(1) of the Act, where she argued
the three occasions as being:
On the
5
th
of June 2008 where the Rule 30(2)(b) of the notice
was served;
On the
11
th
of June 2008 during a telephonic conversation
between the attorneys;
When the
application in terms of Rule 30 was finally launched on 10 July
2008.
In
considering these three occasions, I am not persuaded that any of
the said three occasions constitute an objection envisaged
in terms
of Section 3(4)(a) of the Act. Ms Goedhart sought to convince the
Court that the notice in terms of Rule 30(2)(b) constituted
an
objection as envisaged in Section 3(4)(a) of the Act. I am of the
view that Rule 30 is meant to deal with an irregular step
taken by a
party in terms of the Uniform Rules of Court. It is not meant to
serve as a ground for objection in respect of procedural
aspects
relating to other legislation. Rule 30(1) clearly indicates, in
this context that :
“
(1) A
party to a cause in which an irregular step has been taken by any
other party may apply to Court to set it aside.”
The
“
irregular step
” mentioned in the rule related
only to an irregular step taken by a party in respect of the Uniform
Rules of Court. I am,
accordingly, of the view that if Rule 30 was
intended to serve as a notice of objection in respect of proceedings
other than
the Uniform Rules of Court, it would be casting the net
far too wide and would lead to abuse. In any event, Rule 30 was
never
intended to serve as a basis for the objection to procedural
irregularities in respect of other legislation. Rule 30 was meant
to deal with irregular steps taken by parties involved in litigation
where the irregularity emanated from the use of the Rules
of Court .
Ms
Goedhart sought to convince the Court that at the time the order was
made by Tsoka J, the decision in
Minister of Safety and Security
v De Witt
,
supra
, was not made and accordingly that was
the law extant at the time. This reasoning, in my view, is
erroneous in that the Supreme
Court of Appeal did not deal with Rule
30 of the Uniform Rules of Court. Insofar as the Supreme Court of
Appeal interpreted the
provisions of the Act, and more particularly
Section 3 of the Act, it did so to clarify the meaning of the
Sections of the Act
and not to add to or to vary the Act.
Accordingly, it cannot be said that when the Rule 30 application was
argued before Tsoka
J that the law was different to what the law was
when the Supreme Court of Appeal interpreted the provisions of the
Act in
Minister of Safety and Security v De Witt
. Rule 30 was
not different to what it is now and the reliance by the Respondent
on
Deputy Minister of Tribal Authorities and Another v Kekana
in
this regard, as indicated earlier, is erroneous.
In the
circumstances I am of the view that the Respondent should not have
proceeded in terms of Rule 30 of the Uniform Rules of
Court with a
view to object to the validity of the Appellant’s notice given
in terms of Section 3 of the Act. The appropriate
course that the
Respondent should have adopted in the matter was to have either
objected to the notice in terms of the Act or
to have delivered a
special plea after summons was served. The delivery of a special
plea would have allowed the Appellant to
file a replication in terms
of Rule 25 of the Uniform Rules of Court and would have allowed a
proper ventilation of the issues
relating to condonation.
Accordingly,
I make the following order:
The
Appeal is upheld with costs.
The
order of the court
a quo
is set aside and substituted with
the following order:
“
The
application in this matter is dismissed with costs
”
HORN J
___________________
I concur
MAYAT
J
_____________________
I concur
Counsel
for the Appellant: Adv. DJ Joubert
Instructing
Attorneys: Schickerling Bowen & Hesselink
Counsel
for the Respondent: Adv. G Goedhart
Instructing
Attorneys: Webber Wentzel
Judgment
Date: 18
th
August 2010