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[2013] ZAECPEHC 12
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Fischat v Nelson Mandela Bay Municipality (300/13) [2013] ZAECPEHC 12 (28 February 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICAN
EASTERN CAPE –
PORT ELIZABETH
Case No: 300/13
In the matter between
HERBERT ROBERT JAMES
FALCONER FISCHAT
......................
Applicant
and
NELSON MANDELA BAY
MUNICIPALITY
............................
Respondent
JUDGMENT
REVELAS J
[1] The applicant
approached this court in urgent proceedings seeking firstly,
condonation for his non-compliance with the Uniform
Rules of Court
relating to time periods, forms and service and secondly, condonation
for his non-compliance with section 3 of the
Institution of Legal
Proceedings Against Certain Organs of State Act, No 40 2002 (the
Act), relating to written notice of intended
proceedings against an
organ of state, such as the respondent municipality. In addition, the
applicant sought leave to institute
legal proceedings in this court
against the respondent for the recovery of the balance of certain
remuneration, which he contends
is owing to him. He also sought a
costs order against the respondent who has opposed this application.
[2] Section 3 of the
Act requires a party who wishes to institute legal proceedings
against an organ of State, to serve written
notice thereof within six
months from the date on which it became due on. Where this
requirement has not been met, and the organ
of state relies on the
failure to give such notice timeously, a court may on application,
grant condonation for such failure “
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”.
(emphasis added)
[3] The applicant, an
advocate and former attorney, was appointed as chairperson of the
respondent’s Valuation Appeal Board
(“the board”)
with effect from 9 November 2009 for a period of four years. His
appointment was made in terms of section
56 of the Local Government:
Property Rates Act, No 6 of 2004 (the Rates Act) on or about 23
October 2009 and he was also eligible
for re-election. The applicant
maintained that he performed work for the respondent during the
period 14 January 2010 to the end
of August 2010, as chairperson of
the board. It is common cause that the respondent remunerated the
applicant for his work at the
end of October 2010. The amount paid
was not given, but the applicant maintains that the respondent did
not pay him in full as
remuneration for 149 work days and certain
travel costs remained unpaid.
[4] The applicant’s
remuneration was regulated by the National Treasury of the Republic,
Government Notice No 99 issued in
terms of the Rates Act which
provides that a municipality, for which an appeal board was
established in terms of section 56 of
the Rates Act, must remunerate
and compensate the chairperson of that appeal board. Fixed daily
tariffs, applicable to commissioners
who sit in committees of enquiry
and commissions and appeal board chairpersons, are circulated from
time to time. The tariff applicable
to him, according to the
applicant, was set out in a circular issued by the National Treasury,
dated 30 April 2009 attached to
his founding affidavit, being
R3327.00 per day. After April 2010 the applicant claimed R3526.00 per
day. The remuneration referred
to, is according to regulation 3 of
the Government Notice “
for an eight hour working day, and
where more or less hours of service of service is rendered, a
chairperson of an appeal board
and a committee of an appeal board or
other member, as the case may be, must be remunerated for such hours
of service in proportion
to an eight hour working day”.
Regulations 4 and 5 of the aforementioned notice makes provision for
the type of travel and accommodation expenses for which they
may be
reimbursed by the relevant department.
[5] The applicant
alleges that he commenced with his duties on 14 January 2010, at his
own premises when his secretary handed to
him approximately seven
hundred and eight files which qualified as appeals. The applicant
says he commenced his duties prior to
the other board members and
prepared for the appeals by
inter alia,
acquainting himself
with the applicable legislative principles and had meetings with
various municipal valuators.
[6] No appeal board
hearing was held during January 2010, but the applicant was
nonetheless remunerated. The applicant alleges that
during February
and March 2010 he surveyed files and set up a programme for the
Valuation Appeal Board hearings which commenced
on 24 March 2010, and
was entitled to be remunerated for this type of work. To obtain his
remuneration, his register of attendance
was submitted as his claim
form to the respondent at the end of each calendar month. For every
day in February, save Saturdays,
Sundays and Wednesday 3 February
2010, the attendance register (completed by the applicant) reflected
that he arrived every day
at 8h00, took lunch from 13h00 to 13h30,
and departed at 16h30. It is not clear where he arrived or departed
from. The same entries
are made for January as from Wednesday 13
January 2010. With minor exceptions, the entries for the remaining
months are by and
large the same. Regulation 3 of the Rates Act
provides that the chairperson of an appeal board must be paid within
(30) thirty
days of the submission of a claim to that municipality.
[7] The respondent
disputes that a chairperson such as the applicant is entitled to
claim for administrative and preparatory work,
and alleges that a
large portion of his claim relates to such work and, in as much as he
was paid for such claims in terms of his
January claim, this was paid
in error. Later this payment was set off against the next legitimate
claim. The respondent’s
case is that the applicant and other
board members were only entitled to claim for the days on which they
rendered their services
at appeal hearings, which only as from 24
March 2010 when the hearings actually began. Therefore, the applicant
was not entitled
to any remuneration for January 2010, February 2010
and the period preceeding 24 March 2010. In addition thereto, the
respondent
alleges that the time sheets submitted by the applicant
contradicted the respondent’s electronic data which revealed
that
the applicant materially overstated the time he spent on work.
The respondent believes that it paid the applicant in full in October
2010 for services he lawfully rendered between 24 March 2010 –
30 October 2010, and for which he was lawfully entitled to
be paid.
[8] The applicant
engaged officials of the respondent in discussions about the payment
of the remainder (the unpaid portion) of
his claims on two occasions.
These were apparently short meetings held on 15 December 2010, with
Mr Tau, and on 15 January 2011
with Mr Weyers and Mr Nogqala of the
respondent. He said Mr Nogqala conceded that he was not paid for the
149 days. At the last
meeting, the applicant said an offer was made
to pay him for 50 days (25 full days and 50 half days), but not for
the other 74
days he believed he was entitled to. This offer was not
acceptable to the applicant. He said Mr Nogqala then undertook to
revert
to him after first obtaining a legal opinion, but did not. Mr
Weyers, the deponent to the answering affidavit, said it was made
clear to the applicant, in unequivocal terms at the first meeting
(which according to the respondent’s records took place
on 14
December), and which Mr Tau and Mr Nogqala also attended, that the
respondent was not going to pay him for an additional
149 days. Mr
Nogqala then reverted to the applicant at the second meeting, (in the
new year as arranged at the previous meeting),
and reiterated the
respondent’s position as previously stated at the December
meeting.
[9] Six months later,
in July 2011 the applicant travelled to Bhisho to discuss his
remuneration issue further with Mr Tau, who
was not in. He then spoke
to Mr Jamekwana of the respondent about the matter. The latter said
he would speak to Mr Tau about it.
Mr Tau subsequently phoned the
applicant and a meeting was arranged for a time towards the end of
the year. In the interim, on
25 October 2011, the applicant said he
had written to Mr Tau, who did not attend the arranged meeting. After
calling Mr Tau “
once or twice during the beginning of 2012
”
the applicant said he wrote to Mr Tau on 3 April, 23 April and 29
October 2012. The respondent denies receipt of these letters
(copies
of the first and second letters were attached to the founding
affidavit). The applicant explained that since he was still
the
chairperson of the Valuation Appeals Board, he was disinclined to
become embroiled in legal proceedings against the respondent.
He
therefore did not place the respondent on terms or threaten with
litigation. He tried to persuade the respondent’s officials
that they ought to pay him so that he could avoid litigation.
[10] The applicant’s
interaction with the respondent’s officials on the question of
full payment of his accounts was
rather limited if one has regard to
the time frame in which they occurred. Not much is explained by him
as to the nature of the
objection to paying the amount claimed was,
or at least his understanding of the basis on which there was an
objection and his
response thereto. Unfortunately nothing is said by
the respondent about the computation of the amount actually paid to
the applicant.
In my view, an explanation for the basis upon which
the actual payment made was arrived at, would have contributed
substantially
to my understanding of the applicant’s prospect
of success in a trial.
[11] On 18 December
2012, the applicant through his attorneys, gave notice of his claim
in terms of section 3 of the Act, being
R583 472.00 computed as
follows:
“
(a)
Forty-two working days during February-March 2010 at R3 327.00
per day = R139 734.00.
Hundred and seven
working days from April- October 2010 at R3526.00 per day =
R377 282.00.
Distance travelled
daily thirty six km @ R4.00 per km = R21 456.00”.
[12] The letter is
concluded with an invitation – obviously in terms of section
3(1)(b) of the Act- which reads:
“
To
consent in writing to the institution by our client of the envisaged
action to claim his arrear remuneration aforesaid despite
the fact
that the notice does not comply with all the requirements of section
3 of Act 40 of 2002”.
[13] The notice should
have been delivered on 30 August 2010, more than two years before
this letter. The date on which the first
debt became due was at the
end of February 2010, and it would prescribe at the end of February
2013. Hence this urgent application
which was instituted by the
applicant, three weeks prior to prescription interrupting his claim.
Urgency
[14] The respondent
disputed that the matter was urgent. Alternatively, it argued that
any urgency was self-created by the applicant.
The respondent also
denied that good cause was shown by the applicant or that a proper
explanation was given for the applicant’s
failure to give
timeous notice in terms of section 3(2) of the Act. According to the
respondent, the applicant knew on 10 May 2011,
when he was formally
advised by a Mrs Vermaak that the respondent contested his claims.
The applicant denies having received this
letter. His subsequent
actions, it was submitted, supported his version, because he did pay
the visit to Bhisho to speak to Mr
Tau and wrote at least two letters
to the respondent requesting payment (copies of two of the three
letters he said he wrote were
attached to the founding affidavit)
thereafter. Even though the applicant the applicant did not persue
his claim with the vigour
one would have expected from someone who
was not paid for his work, it cannot be said that he was completely
supine.
[15] Relying on the
well-known judgment in
Caledon Street
Restaurants CC v Monica D’Aviera
[1998]
JOL 1832
(SE) at p 11, the respondent submitted that even though the
matter was ripe for hearing the applicant should be non-suited for
not according the respondent and its lawyers proper respect by
adhering to the time periods stipulated in Uniform Rule 6. The
respondent
stressed that the applicant was an advocate and former
attorney, who was not ignorant of the requirements of section 3 of
the Act,
but had nonetheless remained supine for more than two years
before launching this application, and then only in the face of
looming
prescription. Clearly, the applicant was the maker of his own
urgency. I do not agree however, that should be non-suited on this
ground alone.
Good Cause for the
Delay and a Proper Explanation
[16] In
Madinda v
Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) it was said
that the phrase “
if the court is satisfied”
has
long been recognised as setting a standard which is not proof on a
balance of probability. Heher JA put it thus in para 8 at
316 E-F:
“
Rather
it is the overall impression made on a court which brings a fair mind
to the facts set up by the parties”.
[17] In
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA (A)
Schreiner JA said the following about good cause at 352 H-353A:
“
It
is enough that for present purposes to say that the defendant must at
least furnish an explanation of his default sufficiently
full to
enable the Court to understand how it really came about, and to
assess his conduct and motives”.
[18] The applicant’s
explanation for the delay is that he tried to avoid litigation with
the respondent and was also ignorant
of the provisions of section 3
of the Act. Mr Weyers, the deponent to the answering affidavit, who
was present at the meeting with
the applicant and Mr Nogqala, stated
that it was conveyed to the applicant in unequivocal terms at the
meeting of 15 January 2011
that a portion of his claim would not be
paid (as stated by the applicant). The respondent argued that even if
the applicant did
not receive Ms Vermaak’s letter of 11 May
2011, at least since 15 January 2011, the applicant knew that he
would not be paid
the full amount he sought from the respondent and
should have acted then. I do not agree entirely with that submission.
If that
were the true position, the respondent need not have waited
until May 2011 to formally dismiss the applicant’s claim in
writing.
The respondent had also made settlement proposals in January
2011 (December 2011 according to the applicant) which belies an
unequivocal
state of affairs.
[19] The applicant’s
explanation for the delay, that he was avoiding litigation by trying
to persuade the respondent’s
officials to affirm his
entitlement to a further payment is borne out by his correspondence
to the respondent and the meetings
he had. It may not have been the
correct approach to adopt in the matter, but it is nonetheless an
explanation. The delays between
the applicant’s three letters
to the respondent and the meetings he had with the officials, were
however spread over two
and a half years, a very long period.
[20] Even though it is
only mentioned in the applicant’s replying affidavit, I believe
the applicant when he says that he
did not know of the statutory
notice requirement in section 3 of the Act until he visited his
attorneys in October 2012. The probabilities
tend to support the
veracity of that statement. His ignorance of the required notice
period may have been a contributing factor
causing the delay, but it
is not necessarily a good explanation.
[21] Ignorance of the
law, in my view, should not be open as an excuse to a lawyer, who was
gainfully engaged by a municipality
(or other organ of state) to do
legal work on assumption of his legal expertise. Particularly not
ignorance of the legal and statutory
procedures involved when he
wishes to sue that organ of state for remuneration owing to him. It
is fair to say that it can reasonably
be expected from the applicant
that he ought to have known of the statutory notice period.
[22] With regard to
“good cause” for the delay the following held by the
learned Judge of Appeal in
Madinda
at 317 C-G pertinent to
this matter:
“
There
are two main elements at play in section 4 (
b
),
viz
the subject’s right to have the merits of his case tried by a
court of law and the right of an organ of state not to be unduly
prejudiced by delay beyond the statutorily prescribed limit for the
giving of notice. Subparagraph (iii) calls for the court to
be
satisfied as to the latter. Logically, subparagraph (ii) is directed
at least in part, to whether the subject should be denied
a trial on
the merits. If it were not so, consideration of prospects of success
could be entirely excluded from the equation on
the ground that
failure to satisfy the court of the existence of good cause precluded
the court from exercising its discretion
to condone. That would
favour an unbalanced approach to the two elements and could hardly
favour the interests of justice. Moreover,
what can be achieved by
putting the court to task of exercising a discretion to condone if
there is no prospect of success?”
[23] There can be
little doubt that if the applicant had not been paid anything
whatsoever in October 2010, he would have persued
a claim for payment
against the respondent with far more enthusiasm than displayed in the
present scenario. The excuse that a party
seeks to avoid litigation
may explain a short delay. On the other hand, a long delay may
suggest that the party seeks to assert
his claim outside court,
because it has weak prospects of success at a trial.
[24] With regard to the
prospects of success in this matter is, the following facts are
significant: The daily remuneration for
chairpersons of appeal boards
is a fixed amount. The respondent was only prepared to pay for the
work done at the actual hearings,
as I understood it. The amount in
dispute is for over half of a million rand for 149 days’ work.
The respondent disputed
ever having paid fees to anyone on the basis
claimed for by the applicant and alleged that he exaggerated the
hours he worked.
[25] The basis of an
entitlement to further payment, would be the main dispute at a trial
hearing, but the applicant did not demonstrate
such a basis. The
applicant never submitted specified statements of account reflecting
what kind of work he had actually done for
the respondent. He only
submitted copies of attendance registers specifying his arrival
times, departure times, when he took lunch
breaks and when he was on
leave. He seemed to have charged per day. These documents do not link
the nature of the work and the
amounts charged therefore, neither do
they explain how he arrived at 149 unpaid days.
[26] Of substantial
significance in this enquiry into the applicant’s prospects of
success, is the fact that the applicant’s
remuneration is paid
from public funds. It could not have been up to him to dictate how
his remuneration would be computed. Without
proof of a precedent, or
an agreement with the respondent, as to his entitlement to the fees
in question, his prospects of success
at a trial are limited.
[27] Based on
considerations set out above, the applicant has not demonstrated good
cause to the satisfaction of a court. The fact
that the respondent
may not have been prejudice by the delay does not assist the
applicant.
[28] The application is
therefore dismissed with costs.
_______________________
E REVELAS
Judge of the High Court
28 February 2013
Appearances:
Counsel for the
Applicant, Adv HJ van der Linde SC, instructed by De Villiers &
Partners, Port Elizabeth. Counsel for the Respondent,
Adv SC Rorke
SC, instructed by Gray Moodliar Attorneys, Port Elizabeth.
Date Heard: 21
February 2013
Date Delivered: 28
February 2013