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[2021] ZAMPMBHC 59
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Minister of Police v Mtungwa (A21 / 2021) [2021] ZAMPMBHC 59 (7 December 2021)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: A21 / 2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
07
December 2021
In
the matter between:
MINISTER
OF
POLICE
APPELLANT
and
VELLAR
MTUNGWA
RESPONDENT
Coram:
RATSHIBVUMO J & GREYLING-COETZER AJ
Heard
:
26 NOVEMBER 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email. The date and time for
hand-down is deemed to be 10H00 on 07 December 2021.
JUDGMENT
RATSHIBVUMO
J
Background.
[1].
This is an appeal against the dismissal of a special plea by the
Bushbuckridge
Magistrate Court (court
a quo
). In a delictual
claim brought against the Appellant by the Respondent, the Appellant
raised a special plea citing non-compliance
with section 4(1) of the
Institution of Legal Proceedings Against Certain Organs of State Act,
no. 40 of 2002 (the Act).
[2].
It was common cause that the Respondent served a notice of its
intention to
institute an action against the Appellant on the office
of the National Commissioner and not the Provincial Commissioner of
Police.
Before the court
a quo
, the Appellant (then the
Defendant) argued that the claim against it should be dismissed with
costs in that the Respondent (then
the Plaintiff) did not serve a
notice of its intention to institute legal proceedings against him on
the offices of the Provincial
and
the National Commissioner of
Police as required by the Act. The argument presented before the
court
a quo
by the Respondent was to the effect that there was
no legal provision in the Act that requires service on both offices.
According
to the Respondent, the legal provision in the Act was to
the effect that such notice should be served on the office of the
Provincial
or
the National Commissioner of Police.
[3].
The court
a quo
handed down its judgment without expressing
what it found to be the exact provisions in the Act although it
indicated that it looked
into the statutory provisions “at
length.” This I find peculiar especially because the legal
representative for the
Respondent had accused Mr. Mashego who
appeared for the Appellant to be deliberately misleading the court as
he lied about what
the statutory provision was. He so believed in his
argument that he even informed the court that he was too emotional to
proceed
with the argument. It took the court to beg him with
emotional healing words that easily wipe the teary eyes dry, for him
to find
courage to proceed, albeit still grumbling about how the
court was being misled.
[4].
On appeal, the statutory provisions were no longer contentious as the
legal
representative for the Respondent conceded in the heads of
argument filed, that when he argued before the court
a quo
, he
had not familiarised himself with the latest provisions of the Act.
His argument, so he says, was based on the old legal provision.
Strangely, that is how far his concessions went. One would have
expected him to make a remark on why then should the appeal be
dismissed with such a strong concession that forms the backbone of
his opposition to the special plea and thereby, the appeal.
Lastly,
one would have expected of him to have apologised or withdrawn the
demeaning words he levelled against his learned friend
whose only
crime was to be up to date with the law.
The law.
[5].
The relevant sections of the Act provide 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.
(3)
…
(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)
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.
4.
Service of notice
(1)
A notice must be served on an organ of state by delivering it by hand
or by sending it by certified
mail or, subject to subsection (2), by
sending it by electronic mail or by transmitting it by facsimile, in
the case where the
organ of state is-
(a)
a national or provincial department mentioned in the first column of
Schedule
1
,
2
or
3
to the Public Service Act, 1994 (Proclamation No. 103 of 1994), to
the officer who is the incumbent of the post bearing the designation
mentioned in the second column of the said Schedule 1, 2 or 3
opposite the name of the relevant national or provincial department:
Provided that in the case of the Department of Police, the notice
must be sent to the National Commissioner
and
the Provincial Commissioner of the province in which the cause of
action arose, as defined in
section
1
of the South African Police Service Act, 1995;
(b)
…” [My emphasis].
[6].
The provisions for the service of the notice on the Commissioner of
Police
was introduced by section 32 of Act no. 8 of 2017 and was
operative with effect from 02 August 2017. The alleged incident on
which
the claim by the Respondent emanates, took place on 20 March
2018. There is no doubt that that the Respondent was obliged to
follow
the above statutory provisions. The Respondent was well within
its rights to bring an application for condonation for failure to
fully comply with the requirement to serve a notice on both the
provincial and national office of the Commissioner of Police. The
Respondent did not do so most probably because her legal
representative did not even know that it was not in compliance. There
is however no justification for that as the special plea was properly
pleaded before the matter was set down for hearing, allowing
the
legal representatives enough time to consider and research the issue.
Before the court a
quo.
[7].
The court
a
quo
was
also mindful that there was no application for condonation before it.
Notwithstanding aforesaid, the court
a
quo
proceeded to adjudicate the matter on the basis of a condonation,
asking questions relevant to a condonation application, such
as
whether anyone would suffer prejudice if the special plea was
dismissed and whether there was a good cause for not fully complying
with the Act.
[1]
This court
finds that the court
a
quo
misdirected
itself in applying the test for condonation while none was before it.
[8].
It was a
further misdirection to hold that since the Appellant was represented
in court, it meant that it was notified or that the
notice served its
intended purpose. Surely the Appellant, like any other defendant was
represented in court because summons was
issued against it. The
notice issued in terms of the Act is not a substitute for the
summons. The declared purpose of the Act,
as
stated in its preamble, is to regulate and harmonise periods of time
within which to institute legal proceedings against certain
organs of
State and to give notice of such proceedings.
[2]
This process allows the particular organ of State time to investigate
the claim and decide on whether to settle, without incurring
legal
costs. Just because both parties are before court does not entitle
one party to ignore the prescripts of an act especially
where the
non-compliance has formally been pleaded.
[9].
The court
a
quo
also appeared not to be alive to its limited jurisdiction when it
introduced the “access to court” principle as a reason
to
dismiss the special plea. As indicated already, there was no
condonation application before the court. Further to this, the
court
a quo
,
suggested that it would ignore any legislative provision that is not
in line with the constitution on access to courts.
[3]
In so doing it seemed to be oblivious of the fact that it lacked the
inherent jurisdiction and that as a creature of the statute,
its
powers are limited to those provided by the empowering statute. In
assuming such powers, it ignored the constitutional provision
that
bars it from inquiring into the constitutionality of a legislation.
The Constitution provides,
“
Magistrates’
Courts and all other courts may decide any matter determined by an
Act of Parliament, but a court of a status
lower than a High Court
may not enquire into or rule on the constitutionality of any
legislation or any conduct of the President.”
[4]
[10].
Presuming that the court
a quo
had the jurisdiction to inquire
into the constitutionality of the legislation as it envisaged; to
require full compliance with
the prescripts of the law cannot be
debarment to access to the courts. This is so especially when a
provision exists for those
who fail to comply, to apply for
condonation.
[11].
The last
misdirection by the court
a
quo
was
when it held that “the courts were not made for the laws, but
the laws for the court.” This may have been a confusion
with
the principle to the effect that “
rules
exist for the court, not the court for the rules.
”
[5]
The Court
a
quo
’s
approach suggests that the courts can ignore a law for all practical
purposes. Courts are to interpret and uphold the law,
and not to
ignore it.
[12].
It follows from the above that the wrong test was applied when the
special plea was dismissed.
With the concessions made by the
Respondent, all that remain in the heads of argument are reasons why
a condonation should be allowed.
But this is not a condonation but an
appeal on whether special plea on non-compliance should have been
upheld or not.
[13].
It follows therefore that in light of the above, I propose the
following order:
[13.1] Appeal is upheld
with costs.
[13.2] The order of the
court
a quo
is set aside and replaced with the following:
[13.3] The Plaintiff’s
claim is dismissed with costs.
_____________________
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I
agree
_____________________
D
GREYLING-COETZER
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARD
: 26 NOVEMBER 2021
DATE
OF JUDGMENT
: 07 DECEMBER 2021
FOR
THE APPELLANT
: ADV P NONYANE
INSTRUCTED
BY
: STATE ATTORNEYS - PRETORIA
C/O
MASHEGO ATTORNEYS
NELSPRUIT
FOR
THE RESPONDENT
: MR. EE SITHOLE
INSTRUCTED
BY
: EE SITHOLE ATTORNEYS
C/O
NM MABUNDA ATTORNEYS NELSPRUIT
[1]
See
Madinda
v Minister of Safety & Security
2008
(4) SA 312 (SCA)
and
Minister
of Police and Another v Yekiso
2019
(2) SA 281
(WCC)
.
[2]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at para 176.
[3]
Section 34 of the Constitution of the Republic of South Africa
provides,
“
Access
to courts.
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[4]
Section 170 of the Constitution of the Republic of South Africa.
[5]
Eke
v Parsons
2016
(3) SA 37
(CC) at 53A–D.