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[2012] ZASCA 98
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MEC for Education, KZN v Shange (529/11) [2012] ZASCA 98; 2012 (5) SA 313 (SCA) (1 June 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 529/11
In the matter between:
The MEC for Education,
KwaZulu-Natal
…..........................................................
Appellant
and
Simphiwe Shange
…..........................................................................................
Respondent
Neutral citation:
The MEC for Education, KZN v Shange
(529/11)
[2012] ZASCA 98
(1 June 2012)
Coram:
FARLAM,
NAVSA, HEHER, SNYDERS JJA AND PETSE AJA
Heard:
8 May
2012
Delivered: 1 June 2012
Summary:
Condonation
–
Institution of Legal Proceedings Against Certain Organs of
State Act 40 of 2002
– knowledge of the identity of the joint
debtor.
ORDER
On appeal from: On appeal
from Kwa-Zulu Natal High Court, Durban (Govindasamy AJ sitting as
court of first instance):
The appeal is dismissed
with costs.
JUDGMENT
SNYDERS JA (FARLAM,
NAVSA, HEHER JJA and PETSE AJA concurring)
[1] During June 2003 the
respondent, a 15 year old Grade 9 learner, suffered a blunt force
injury to his right eye, allegedly at
the hand of one of his teachers
who was administering corporal punishment with a belt to another
learner. The tip of the belt struck
the respondent on the side of his
eye. An action was instituted by the respondent to recover damages
from the appellant. Before
the matter proceeded to trial an
application was launched by the respondent to seek condonation for
what seemed an acknowledged
non-compliance with the provisions of the
Institution of Legal Proceedings against Organs of State Act 40 of
2002 (the Act). The
court below (Govindasamy AJ sitting as court of
first instance) granted the application for condonation and awarded
the respondent
the costs of the application. The appellant sought and
obtained leave to appeal from the court below.
[2] For the purpose of
the condonation application in terms of s 3(4) of the Act, the facts
alleged by the respondent are essentially
undisputed. The incident
occurred during June 2003. The respondent, who was born on 27 August
1987, was 15 years and 10 months
old at the time. After the incident
the relevant teacher told him that the injury he suffered was caused
‘by mistake’.
The respondent accepted that explanation.
During January 2006, when he was 18 years and 5 months old and still
a minor, comments
by a friend of the respondent’s family, who
noticed the latter wearing an eye patch, motivated him to bring the
incident
to the attention of the office of the Public Protector. An
advocate from that office not only advised him to see an attorney,
but
informed him that he had a claim against the appellant.
Consequently, he consulted with and instructed his attorneys of
record
to proceed with an action. On 2 February 2006 the attorney
dispatched a notice in terms of s 3 of the Act to the Minister of
Education.
The relevant provisions of s 3 are:
‘
(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)
. . .
(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)
. . .
(3) 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 it by exercising
reasonable care, unless the organ
of state willfully prevented him or
her or it from acquiring such knowledge; and
(b)
. . . . ‘
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.
(c)
.
. . .’
1
[3]
On 3 December 2008 the respondent’s summons was served on the
appellant. The appellant delivered a special plea in which
she sought
the dismissal of the respondent’s claim for non-compliance with
ss 3(1)
(a)
and 3(2)
(a)
of the Act. This prompted the
respondent’s attorneys to do two things. First, on 7 May 2010,
they dispatched a notice in
terms of s 3 of the Act to the appellant,
and second, they brought an application for condonation in terms of s
3(4)
(a)
of the Act.
[4] The court below
granted condonation on four bases.
2
First, it concluded that
‘a child whose cause of action arose before the commencement of
s 17 of the Children’s Act
38 of 2005 is still entitled to the
same period of time in which to institute his or her claim for
damages as he or she would have
been, had the age of majority not
been changed. Second, that the respondent became ‘aware of his
claim’ on 18 January
2006, the date of the first consultation
with an attorney. Third, that notice to the Minister of Education and
not the appellant
(until much later) was an oversight on the part of
the respondent’s attorney that should not be attributed to the
respondent.
Fourth, that ‘any prejudice which the [appellant]
may have suffered as a result of failure to give notice, could not be
regarded
as unreasonable or insurmountable in the circumstances’.
[5] This appeal turns on
a question that had not been previously asked nor answered. The facts
alleged by the respondent, if proven
during the trial, indicate that
from the outset, two joint debtors were liable for the delict that
the respondent suffered - first,
the teacher that committed the
assault on the respondent whilst acting within the course and scope
of his employment and second,
the teacher’s employer, the
appellant. No claim has been pursued against the teacher. The primary
question that should have
been asked was whether the court could be
satisfied that the condition in s 3(4)
(b)
(i)
has been met in respect of the debt the respondent was trying to
enforce against the appellant.
[6] The answer to the
question is to be found in the facts alleged by the respondent, which
are mostly unchallenged, applied to
the requirements of
s 12(3)
of
the
Prescription Act 68 of 1969
. In order to appreciate the full
context of the section, I quote the entire
s 12
and emphasize those
portions that are pertinent to the question posed:
‘
(1) Subject to the provisions
of subsections (2), (3) and (4), prescription shall commence to run
as soon as the debt is due.
(2) If the debtor wilfully prevents
the creditor from coming to know of the existence of the debt,
prescription shall not commence
to run until the creditor becomes
aware of the existence of the debt.
(3) A debt shall not be deemed to be
due until
the creditor has knowledge of the identity of the debtor
and of
the facts from which the debt arise
: Provided that a
creditor shall be deemed to have such knowledge if he could have
acquired it by exercising reasonable care.’
[7] Immediately after the
incident occurred, the respondent knew almost all the facts from
which the debt arose: he experienced
the event; he knew how it
happened; he knew that it was a teacher who inflicted the injury;
that it happened during school hours
and at school. Insofar as his
claim against the teacher was concerned, that debt became due
immediately. However, whether he, as
a 15 year old rural learner,
knew the identity of the appellant as joint debtor, is not apparent
from those facts.
[8] The respondent’s
attorney of record made an affidavit as part of the founding papers
filed on behalf of the respondent.
At paragraphs 29, 31 and 32 she
states:
’
29 The delict giving rise to
the [respondent’s] claim against the [appellant] (“the
incident”) occurred in June
2003 at which stage the
[respondent] was 15 years old and a minor. More importantly, at the
time of the incident, the [respondent]
was told that the incident was
a mistake. This is what he understood it to be until early in January
2006 when, following questions
from a friend of his mother’s
about the eye patch he was wearing, it was suggested to him that the
Deputy-Principal’s
conduct was wrongful. Following this
suggestion in early January 2006 and further advice from his mother’s
friend that he
should lay a complaint with the Public Protector, the
[respondent] swiftly set about doing so.
30 . . .
31 Until January 2006, either early in
that month when he received advice from his mother’s friend, or
later in that month
when he was given advice by an Advocate at the
office of the Public Protector, the [respondent] understood the
incident to have
been a mistake. He knew at whose hand the incident
was committed but only after receiving advice in January 2006 did the
[respondent]
appreciate that the Deputy-Principal had acted
wrongfully.
32 It was this appreciation in January
2006 that would have set prescription in motion but for the fact that
the [respondent] was
18 years old at the time. He was therefore a
minor against whom prescription did not run, minority being a
statutory impediment
to prescription.’
3
[9] In his own affidavit
the respondent explains that he went to the office of the Public
Protector where he was requested to furnish
them with an affidavit of
the incident, which he did. He then sets out what had happened:
‘
In response to my complaint, an
advocate at the Public Protector’s office telephoned me to say
that I should seek the help
of a private lawyer.
She
said that I should bring a civil claim against the Department of
Education
. Before she told
me this I did not know that there was anything I could do about what
had happened. I thought that Mr Biyela had
hit me by mistake and that
that was the end of the matter.’
(My
emphasis)
[10] The affidavit by the
attorney from which I have quoted above, illustrates that the
relevant question of the identity of the
appellant as the
respondent’s debtor is not addressed. Instead the attorney
focuses on allegations of wrongfulness that,
in a long line of cases
in this Court, has been held to be an irrelevant consideration when
the provisions of
s 12(3)
of the
Prescription Act are
considered.
4
[11] The respondent’s
affidavit comes closer to addressing the real question. He states
that an advocate in the office of
the Public Protector advised him,
in January 2006, to institute a civil claim against the appellant.
Unfortunately the respondent’s
legal representatives did not
appreciate the significance of this fact. Its disclosure, evidently
for the first time, informed
the respondent of the identity of the
appellant as the joint debtor of the teacher who injured him. He was
a rural learner of whom
it could not be expected to reasonably have
had the knowledge that not only the teacher was his debtor, but more
importantly, that
the appellant was a joint debtor. Only when he was
informed of this fact did he know the identity of the appellant as
his debtor
for the purposes of the provisions of
s 12(3)
of the
Prescription Act.
[12
] Section 3(4)
(b)
of the Act requires a court to be ‘satisfied’
that the debt has not become extinguished by prescription, before it
could
grant an application for condonation. In
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA
312
(SCA) para 8 this Court held:
‘
The phrase “if [the
court] is satisfied” in s 3(4)
(b)
has long been recognised as
setting a standard which is not proof on a balance of probability.
Rather it is the overall impression
made on a court which brings a
fair mind to the facts set up by the parties. See eg Die
Afrikaanse
Pers Beperk v Neser
1948
(2) SA 295
(C) at 297. I see no reason to place a stricter
construction on it in the present context.’
I am satisfied that a
careful scrutiny of the unchallenged facts put up by the respondent
taken together with the circumstances
in which he found himself give
rise to the overall factual conclusion, fairly arrived at, that the
condition in s 3(4)
(b)
(i)
of the Act does not operate against the respondent. On the facts, the
respondent, in consulting an advocate in the office of
the Public
Protector and his attorney during January 2006, should reasonably
have become aware, for the first time, that he had
a claim against
the appellant. If prescription commenced running at that time it
would, by 1 July 2007, when the respondent, ex
lege, achieved
majority, have already run for some eighteen months. By reason of
s
13(1)
of the
Prescription Act, the
respondent was entitled to the
benefit of the full relevant period of prescription, ie three years,
before his claim would be extinguished.
That was until at least
January 2009. Summons was in fact served on the appellant on 3
December 2008.
[13] There was therefore
no need for the court below to have entered into the involved
investigation of the effect of
s 17
of the Children’s Act,
which changed the age of majority to 18 years, on the running of
prescription in respect of the respondent’s
claim.
5
[14] The next enquiry is
in terms of s 3(4)
(b)
(ii)
of the Act, whether good cause exists for the failure by the
respondent to have given timeous notice to the appellant. The
notice
was given after the issue of summons, on 7 May 2010, very much
outside six months from the date on which the debt became
due as
required by s 3(2)
(a)
of the Act.
[15] The provisions of s
3(4)
(b)
(ii)
of the Act have been considered in several judgments.
6
For present purposes it
is not necessary to repeat all of the relevant considerations, but
only to state that the court is to exercise
a wide discretion;
7
that ‘good cause’
may include a number of factors that is entirely dependent on the
facts of each case;
8
that the prospects of
success of the intended claim play a significant role.
9
[16] As has already been
pointed out, the respondent was totally reliant on prompting by
others with more insight to take steps
to enforce his claim. The way
in which he has been gravely let down in this regard, is a
distinguishing feature of this case. The
absence of the guidance of
his legal guardian is glaringly evident. His own teacher led him to
believe that nothing could be done
about the incident. The
respondent’s bona fide belief that his teacher’s
explanation put an end to the matter was never
challenged by the
appellant. It serves to adequately explain the delay in any steps
having been taken until January 2006. The respondent’s
misfortune did not end when he consulted his attorney. After January
2006 the respondent’s attorney took reasonably prompt
action in
dispatching a notice, but, incorrectly to the Minister of Education
and not the appellant. The court below, with ample
justification,
referred to the ‘devil’s brew of mistakes, failures and
delays in the prosecution of the [respondent’s]
claim’,
caused by the respondent’s attorneys.
[17] The court below
excused the respondent for his attorney’s mistake in directing
the notice to the Minister of Education
and not the appellant, in the
following words:
’
However, as a result of an
oversight on the [respondent’s] attorney’s part, notice,
on the [respondent’s] behalf,
was sent to the Minister of
National Education and not to the Respondent. Smith’s affidavit
reveals a devil’s brew
of mistakes, failures and delays in the
prosecution of [respondent’s] case. Clearly the oversight on
her part arose from
a failure to appreciate the fact that the
Minister of Education and the [appellant] are two distinct organs of
State. Mr Bedderson
submitted that the [respondent’s]
attorney’s failure cannot be attributed to the [respondent]. I
agree that any failure
on the part of the [respondent’s]
attorney should not be held against the [respondent].’
[18] This conclusion does
not specifically take account of the law relating to whether
attorneys’ mistakes are to be attributed
to their clients.
10
There was, however, no
need to approach the matter from this perspective. The facts referred
to above provide ample indication that
no blame for any delay or
failure is to be attributed to the respondent. In the circumstances
he is not to be treated as an ordinary
litigant, he was a minor, who
sought assistance in order to advance a legitimate claim. Those who
had the responsibility of looking
after his interests, failed him
miserably. It is possible to prevent the prejudice consequent upon
those failures to continue to
adversely affect the respondent.
[19] The appellant has
never suggested that the respondent has not acted reasonably or has
not been bona fide in his attempts to
enforce a legitimate claim that
arises from an infringement of his rights. The appellant has also not
disputed, in these proceedings,
the merits of the respondent’s
allegations, which indicate strong prospects of success.
[20] In
Minister of Safety and
Security v De Witt
[2008] ZASCA 103
;
2009
(1) SA 457
(SCA) paras 5, 11 and 13 it was held that condonation in
terms of s 3(4)
(b)
of the Act could
appropriately be granted even if no notice was given, or notice was
given after the service of summons, provided
that the debt had not
prescribed.
[21] I am satisfied, for
purposes of s 3(4)
(b)
(ii)
of the Act that good case exists for the failure by the respondent to
have given timeous notice to the appellant.
[22] The last question to
consider relevant to condonation arises from the provisions of s
3(4)
(b)
(iii)
of the Act. The court below had to be satisfied that the appellant
was not unreasonably prejudiced by the failure to give
timeous
notice. The facts limit the investigation to only two considerations.
First, the complaint of prejudice raised by the appellant
is general
and unspecified in its terms and unrelated to any facts that indicate
prejudice. Second, the respondent’s allegations
that the
teacher involved is now the principal of the same school and that
pupils that were present during the incident, identified
by name, are
still available, are unchallenged. The absence of any prejudice is
therefore illustrated by these facts.
[23] Consequently, the
conclusion by the court below to grant condonation to the respondent,
is to be upheld.
[24] The court below
granted the respondent the costs of the application for condonation.
At first glance that seems to be incongruous,
bearing in mind the
usual order made when a party seeks condonation for a procedural
failure and the opposition to the application
is not unreasonable.
However in
Lakay
,
Cloete JA explained the difference in reasoning as follows:
‘
Ordinarily, in applications for
condonation for non-observance of court procedure, a litigant is
obliged to seek the indulgence
of the court whatever the attitude of
the other side and for that reason will have to pay the latter’s
costs if it does oppose,
unless the opposition was unreasonable. I
doubt that this is the correct approach in matters such as the
present, as an application
for condonation under the 2002 Act has
nothing to do with non-observance of court procedure, but is for
permission to enforce a
right, which permission may be granted within
prescribed statutory parameters; and such an application is (in terms
of s3(4)) only
necessary if the organ of State relies on a creditor’s
failure to serve a notice. In the circumstances there is much to be
said for the view that where an application for condonation in a case
such as the present is opposed, costs should follow the result.’
11
I am in full agreement
with this view and therefore see no reason to interfere with the
costs order by the court below.
[25] The appeal is
dismissed with costs, including the costs of two counsel.
_____________________
S SNYDERS
Judge of Appeal
APPEARANCES:
For
the Appellant: A K Kissoon-Singh SC
Instructed
by:
The
State Attorney, Kwazulu-Natal
The
State Attorney, Free State
For the Respondent: M
Pillemer SC (with him B Bedderson)
Instructed
by:
Norman,
Wink & Stephens, Cape Town
McIntyre
van der Post, Bloemfontein
1
Subsection
(3)
(a)
largely
echoes the provisions of
s 12(2)
and (3) of the
Prescription Act 68
of 1969
.
2
The
judgment of the court below has been reported as
Shange v MEC for
Education, KwaZulu-Natal
2012 (2) SA 519
(KZD).
3
The
legal statements that minority prevented the running of prescription
are incorrect, but for purposes of this judgment it is
not necessary
to explore. See
ABP 4x4 Motor Dealers (Pty) Ltd v IGI Insurance
Co Ltd
1999(3) SA 924 (SCA) para 15.
4
Gericke
v Sack
1978 (1) SA 821
(A);
Van Staden v Fourie
1989 (3) SA 200
(A) at 216B-F;
Nedcor
Bank Bpk v Regering van die Republiek van Suid-Afrika
[2000] ZASCA 154
;
2001 (1) SA 987
(HHA) para 8-11 and
13;
Truter v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) para 18;
Minister of Finance &
others v Gore NO
2007 (1)
SA 111
(SCA) para 17;
Yellow
Star Properties 1020 (Pty) Ltd v MEC, Department of Development
Planning and Local Government, Gauteng
[2009]
3 All SA 475
(SCA) para 37. In
Van
Zijl v Hoogenhout
[2004] 4
All SA 427
(SCA) this Court accepted the expert evidence of the
mental, emotional and psychological condition of the victim of a
sexual
offence as proof that she did not know the identity of her
creditor within the meaning of
s 12(3)
of the
Prescription Act.
Insofar
as that case could conceivably be interpreted as an attempt
to broaden the provision of
s 12(3)
, that prospect was removed by
the legislature by the introduction of
s 12(4)
of the
Prescription
Act by
Act 23 of 2007 on 16 December 2007 which deals with the
running of prescription in relation to sexual offences as in the
case
of
Van Zijl
.
5
The
change in the age of majority occurred on 1 July 2007 when s 17 of
the Children’s Act 38 of 2005 came into operation,
simultaneous with the repeal of the Age of Majority Act 57 of 1972.
6
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA);
Minister of Safety and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA);
Minister of Agriculture and Land Affairs v C J Rance (Pty)
Ltd
2010 (4) SA 109
(SCA);
Premier, Western Cape v Lakay
2012 (2) SA 1
(SCA).
7
Madinda
para 8;
Lakay
para 14.
8
Madinda
para 10;
Rance
para 36.
9
Rance
para 37.
10
Saloojee
& another NNO v Minister of community Development
1965 (2) SA 135
(A) at 141H;
Ferreira
v Ntshingila
1990
(4) SA 271
(A) at 281G.
11
Para
25.