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[2020] ZALMPPHC 23
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Ledingwane v Speaker: Limpopo Provincial Legislature and Another (5886/2016) [2020] ZALMPPHC 23 (11 May 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 5886/2016
In
the matter between:
MM
LEDINGWANE
APPLICANT
And
SPEAKER:
LIMPOPO
PROVINCIAL
LEGISLATURE
FIRST RESPONDENT
PREMIER
OF LIMPOPO PROVINCE
SECOND RESPONDENT
Headnote
:
Civil procedure- statutory condonation – applicant required to
have first issued Sec 29 notice before pursuing litigation
and before
expiry of twelve months period from the date of cause of action- a
litigant seeking indulgence required to set out explicity
facts to be
weighed against each other to show where ‘interest of justice’
ultimately rest, lest condonation under
S29 (3) would fail.
Purpose of S29 notices is to enable the state or organs of State to
investigate claims made, to defend
or compromise/settle such claims
and for expeditious disposal thereof- similarly, if a claim is under
PAJA, exhausting internal
remedies before embarking on litigation is
cost-effective and assist the executive to rectify alleged
irregularities first
–
In
casu
, applicant’s
reasons for non-compliance with S.29 (1) and (2) unreasonable and
flimsy – Held, condonation dismissed
with costs.
JUDGMENT
MG
PHATUDI J
[1]
The facts giving rise to the present statutory condonation
application constitute
res
nova
in
this Division. The applicant seeks condonation for non-compliance
with the provisions of section 29(1) and 29(2) of the Limpopo
Legislature Service Act, 1997 (“LLSA”).
[1]
The actual relief sought is located in sub section (3) thereof.
The
Notice of Motion sets out the relief as follows:
“
1.
That
the requirements and limitations contained in section 29 of the
Limpopo Province Legislature Act 3 of 1997 be dispensed with
in terms
of sub-section (3) thereof in respect of the action instituted under
case number 5886/2016;
2.
That,
should any respondent oppose this application, it be ordered to pay
costs hereof;
3.
That the
applicant be granted further
and/or
alternative relief.
1.2
The First Respondent oppose the application. The second Respondent
(Premier: Limpopo Province) who has been
sued in his nominal capacity
as the Executive and Political Head of the Provincial Administration,
did not deliver papers in opposition
to the application, as no relief
is sought against his office in the main action. A notice to abide by
the court’s decision
was in fact delivered on 17 February 2017.
The
dispute is therefore between the Applicant and the First Respondent
only, as the “Speaker of Limpopo Provincial Legislature”.
B:
A SURVEY OF THE FACTS:
[2]
The applicant, herself an attorney at law, was appointed as Secretary
to the Limpopo Provincial Legislature
(“LPL”) by the
First Respondent (“the Speaker”) on 18 September 2013.
2.1
In a letter addressed to the applicant by the First Respondent
(“Nong”) dated 17 April 2014,
[2]
she was informed by the Board of the Legislature’s decision
that her appointment as the Secretary was “irregular”
in
that;-
“
2.1.1
The
recommendations of the Interviewing Panel was not presented to the
Board in terms of Section 12 of the Service Board Act, and
2.1.2 The
resolution of the Board was not tabled in the House.”
2.2
For the reasons espoused by Nong, the Applicant was summarily placed
on “special leave” as from
02 April 2014, pending further
procedural processes.
2.3
Subsequent thereto and on 05 May 2014, the Applicant was informed in
writing by Nong of the decision by the Limpopo Legislature
Service
Board , (service Board) of the Board’s resolution to have her
appointment as Secretary of the legislature set aside
for want of
compliance with the spirit and letter of section 12 of the “LLSA”
.
[3]
Because her appointment is
not at issue, I shall for avoidance of prolixity refrain from making
any reference to the provision
thereof.
[3]
Aggrieved by the adverse decision against her, the applicant on 13
May 2014 approached the Labour Court
with an urgent application (Case
no: J1129/2014) seeking a declaratory relief, among other things,
that her appointment as Secretary
was lawful and validly effected,
and that the termination thereof was unlawful. In the same breath, it
appears that she also prayed
for her reinstatement, alternatively be
compensated for the balance of her five (5) year contract period.
This application was
met with resistance on some of its technical
deficiencies, leading to several postponements, for instance failure
by applicant
to appear in court after the matter was postponed more
than once at her own instance, and ultimately the matter was finally
“removed
from the roll” by the court order of
Molahlehi
J
dated
04 December 2014.
[4]
3.1
Since the withdrawal of the urgent application I may state of the
court order on 06.08.2015,
[5]
and after an effluxion of one year and few months down the line, the
applicant sued out a Combined Summons in this court, this
time around
claiming relief predicated on an entirely different cause, namely,
Cancellation of the employment contract, payment
of monetary
compensation for damages in the amount of R7 101 568.00
payable against “the legislature”, alternatively,
by the “defendants” jointly and severally absolving the
one for whom payment is made, plus costs of suit.
[4]
The First Respondent, in opposing the condonation application
contended that the applicant was enjoined
by the provisions of
section 29(1) and 29(2) of the “LSSA” to have commenced
action by issuing the requisite notices
to the First Respondent or
the functionaries listed therein prior to instituting a claim for
civil damages. Failure to have complied
with section 29, so the
submission went, rendered the applicant non-suited. The applicant,
conversely, holds a different view.
C:
THE LEGAL ISSUE:
[5]
The legal issue that calls for consideration is whether the Applicant
has made out a proper case for
condonation sought in terms of section
29(3) of the “LLSA”.
[6]
I deem it expedient first to focus on the provisions of section 29(1)
and 29(2) before section 28(3),
which is the live wire of the
condonation application, is considered.
[7]
Section 29(1) creates a legal limitation of institution by a litigant
of legal proceedings against the
Board, the secretariat or any
employee in the Service for any alleged act or omission committed
under the Act (“LLSA”)
unless such proceedings are
instituted before the expiry of a period of twelve (12) calendar
months after the date upon which the
claimant acquired knowledge or
reasonably expected to have had knowledge of the alleged act or
omission.
[8]
Subsection (2) of section 29 states that no such legal proceedings
(under section 29(1)) shall be instituted
before the expiry of at
least one (1) calendar month after a written notification was served
on the defendant (respondent) as the
case may be, in which
notification particulars of the alleged act or omission shall be
given of the intention to initiate legal
proceedings.
[9]
Furthermore, section 29(3) provides that subsection (1) and (2) shall
not be so construe as to preclude
a court of law from dispensing with
the requirements or prohibitions of the subsections where it is in
the interest of justice.
[10]
Properly construed, subsection (3) of section 29 in my view accords a
court of law power to dispense with the jurisdictional
notices
necessary to be issued before legal proceedings may be instituted in
the manner prescribed in subsections (1) and (2) of
section 29,
unless it is in the interest of justice to do so.
[11]
That said, I am called upon to examine whether or not the interests
of justice in the present instance would best
be served in the event
condonation is granted in favour of the Applicant.
[12]
Counsel for the Applicant, Mr Skosana SC, correctly submitted that
the court has judicial discretion to lean in
favour of granting
condonation envisaged in subsection 29 (3) to which reference is
made, where “
it is in the interest of justice”
to
do so. The operational words contained in subsection (3) of section
29 are “the interest of justice”. This notion
entails
such a variety of factors well vested in our law as the reasons for
non-compliance, the degree of delay, the reasonableness
of the
explanation offered, prospects of success (in the main case) as well
as prejudice. I may add, the complexity of the matter,
its practical
effect (if not moot) at all. Merits would vary from case to case
depending on the circumstances. However, the enquiry
does not end
there, and is certainly not exhaustive.
[13]
Turning to the facts in the instant matter, it is not in dispute, and
consistent with her version, the applicant
issued a Combined Summons
in this court on 05 December 2016. This then begs the question; did
the applicant prior to setting her
civil claim in motion issue the
requisite written notices envisaged in subsection 29(1) and (2) of
the “LLSA”?
12.1
I must point out from the onset that the date upon which the
Applicant launched her Labour Court application on 13 May
2014, is to
my mind, not proximately relevant for the purpose of the present
application. Nonetheless, that the same had
been withdrawn from
the roll on 06 August 2015, and it was never again revived. There is
therefore no
lis inter partes
however, what is crucial is the
initiation of the civil action and the time when proceedings were
commenced with.
[14]
It is common cause that the applicant was informed of termination of
her employment on 05 May 2014. This was when
the cause of action
arose if indeed aggrieved by that decision and then contemplated to
protest either her employment rights or
civil action damages, as the
case may be.
14.1
Either way one looks at it, it was incumbent for Applicant to have
first issued the section 29 notices to the first Respondent
before
pursuing litigation.
[15]
Legal proceedings in this court should have been preceded by a
subsection 29(1) notice to the first Respondent
before expiry of a
period of twelve (12) calendar months from 05 May 2014. In
casu
,
the Applicant failed to trigger a lawsuit within 12 months by 07 May
2015. She waited until 05 December 2016 to institute a civil
action
claiming cancellation of the employment contract and monetary
compensation. This was a delay of almost 2 years 7 months.
15.1
This court is not informed as to why she chose the Labour Court as
court of first relief and only to have her claim withdrawn
and never
revived it. I can only assume, without deciding, that she had since
05 August 2015 either lost interest in the matter
or simply abandoned
her Labour Court claim in that forum, hence the matter was formally
withdrawn by agreement, which agreement
was made a consent court
order.
[6]
15.2
My view is, even though I was not asked to make a determination, the
Labour Court would have been the exclusive
forum
[7]
to have come to her assistance if and only where she had a
legitimate claim, and provided that she had issued beforehand
the
jurisdictional notices to the First Respondent.
15.3
Be that as it may, the Applicant on her own version, conceded and
correctly so, in my view, that she did not issue the
statutory
prescribed notice within one(1) month as envisaged in subsection
29(2) of the said Act. It does not appear on the facts
either that
she endeavoured to issue the prescribed notices first before
litigation ensued. This then thrust a duty upon her to
have sought an
indulgence in the manner contemplated in subsection 29(3) in
circumstances where this court ‘if satisfied
‘would lend
an indulgence to the applicant, if it is the interest of justice to
do so within the purview of 29(3). The Applicant,
in any event,
failed to issue the section 29(2) notice against the First and the
Second Respondents before suing out the civil
action in this
Division.
15.4
In short, whether the declaratory order sought was pursued within 12
months or not, was an immaterial consideration.
What really matters
is the prosecution of the civil action in this jurisdiction. In
addition, such action was instituted way outside
the timeline set out
in section 29(1).
[16]
In consequence, and for the aforegoing reasons, I am unable to agree
with Applicant’s Counsel that the particulars
of claim (cause
of action) for which the urgent Labour Court application was
launched, constituted a “demand”.
This
submission is not only bad in law, but equally untenable.
To
that extent, I remain firm in my view that the Applicant’s
failure to comply with the requisite statutory provisions rendered
her non-suited. She founded no proper case to persuade this court to
the contrary in order to dispense with the requirements of
section
29(1) and (2).
[17]
I proceed now to examine the purpose of the required statutory
notices to which reference is made.
17.1
First and foremost, the Applicant (Plaintiff in the main civil
action) is a self-confessed attorney of this court. I
presume that
she would be quite familiar with the objective of legal notices such
as these.
17.2
It is significant if not necessary for a party seeking an indulgence
to set out explicitly factors he/she relies on to
be weighed against
each other to essentially demonstrate where the “interest of
justice” ultimately rests. In the present
instance, the
Applicant did not demonstrate on the merits of the main action
sufficient facts to enable this court to decide whether
it is in the
interest of justice to grant section 29(3) condonation. The enquiry
orbits around the well-known principles aptly
laid down by the
Constitutional Court in
Mankayi
v AngloGold Ashanti Ltd
.
[8]
See also
Matjabeng
Local Municipality v Eskom Holdings Ltd & Others 2018 (1) SA
(CC).
17.3
The court, absent any demonstrable factors referred to elsewhere in
this judgment, (Para ; 12) may not exercise its discretion
properly
in terms of section 29(3) to dispense with subsection (1) and (2) of
section 29 notices as the case may be, in order to
grant
condonation.
[18]
The purpose of statutory notices,
[9]
most of which conditionally limit the institution of legal
proceedings, are in the main, to enable the State or even organs of
state, first to investigate claims made against them as alleged
debtors. Not only that, and to enable them to admit or deny,liability
defend the claim or where appropriate, to settle or compromise such
claims in order to obviate unnecessary cost escalation. The
observation I make above is consonant with the reasoning adopted in
Mothupi
v MEC for Health, Free State
[10]
that claims made against the State must be expeditiously investigated
soon after the alleged claim had arisen as indicated in the
statutory
notice. I may as well add that such a notice serves to avoid
so-called “trial by ambush” against the defendants,
which
are themselves creatures of statute.
[19]
Furthermore, and quite intriguingly, despite issuing summons on 05
December 2016, the Applicant chose to seek condonation
on 07 February
2019, some three (3) years down the line. The application does not
show the practical effect of or compelling
reasons why
condonation should be granted to her.
[20]
The other difficulty Applicant faces is that, she “discovered
that during May 2018 the legislature had wrongly
entered in its
records and caused such entry to be made in the Persal system”,
that “I have been dismissed from the
legislature….”
[11]
)
To
these allegations, the First Respondent apart from disputing them in
its answering affidavit “AA”, contended that
the adverse
decision (enlisting applicant on National Treasury) has since been
deleted. The “AA” was delivered on 14.03.2019.
[21]
Bearing in mind these developments, one wonders if the reasons for
inclusion of consequential damages as introduced
by the amended
particulars of claim was still worth the salt to pursue on trial. The
said amendment was delivered on 27 November
2017,
[12]
yet condonation was sought only on 07 February 2019, some one (1)
year and 2 months after.
[22]
Having said that, the view I take in that instance is that the issue
about the alleged damaging effect on Applicant’s
name being
wrongfully enlisted on the infamous National Treasury records of
undesirable public servants, has now become superfluous
for mootness,
as the complaint had become redressed or corrected. Courts must
not be seen to be pre-occupied by litigation
that is moot with little
or practical, effective consequences. To do so would not be in the
interests of administration of justice
or sound legal policy.
[23]
In addition to what I have already alluded to in paragraph (18) above
regarding the necessity to issue the prescribed
statutory notices, I
venture to suggest, that the objective is also to assist a
litigant to first exhaust internal remedies
available before
venturing in, costly and often protracted litigation, when same could
have been avoided. This is particularly
important where the claim
such as the one asserted by the Applicant boarders on administrative
action under section 7(2) (c) of
“PAJA”.
[13]
Section 7(2) (c) of PAJA is however, not cast in stone as it bestows
judicial discretion in “exceptional circumstances”
to
depart from prior exhaustion of internal legal remedies if the
interests of justice so dictate.
[24]
What has been stated in
Kobaye
v Minister For Home Affairs
,
[14]
by
Mokgoro
J
in
paragraph [35] is commendable. The learned Judge stated that;-
“
[35]
Internal remedies are designed to provide immediate and
cost-effective relief, giving the executive the opportunity
to
utilise its own mechanisms, rectifying irregularities first, before
aggrieved parties resort to litigation. Although courts
play a vital
role in providing litigants with access to justice, the importance of
more readily available and cost-effective internal
remedies cannot be
gainsaid.”
I
agree absolutely.
CONCLUSION:
[25]
By failing to have issued the required statutory notices prior to
institution of legal proceedings both in the
Labour court (now dead
in the water) and in this court, the first Respondent was clearly
prejudiced as it was denied an opportunity
to employ its own
mechanisms to obviate litigation in case there were apparent
illegalities or irregularities in its decision to
terminate the
Applicant’s appointment as secretary of the “LPL”.
[26]
It is generally accepted principle that a party seeking condonation
must place the court in a vintage position
to evaluate the merits and
to balance all factors with the reasons for non-compliance as well as
the explanation for inordinate
delay.
[15]
This will ordinarily complement merits which often mitigate fault,
since absence of merits, may render mitigation pointless.
Furthermore,
inordinate delay litigating, damages the interests of
justice. They protract disputes over rights and obligations sought to
be
enforced, prolonging the uncertainty of all concerned about their
affairs.
[16]
All these
negativities clearly are a recipe for untold prejudice to the
parties.
[27]
In sum, the Applicant’s delay in instituting the civil action,
after a passage of one year and seven months
after the claim had
arisen coupled with failure to address the statutory notice timeously
or at all cannot, in my view, be said
to be excusable nor reasonable.
And, the purported explanation does not cover the entire period of
the delay. Furthermore, the
allegations that she ran out of funds, or
failed to secure
pro bono
assistance, when she intimated that
she is herself an attorney by profession, and in the process still
hired and fired legal representatives,
are nothing cumulatively
viewed, but flimsy reasons.
[28]
The principles governing applications for condonation were over the
years aptly articulated by Holmes JA in
Melane
v Santam Insurance CO. Ltd.
[17]
One can safely say that these principles remain as useful tools for
juridical guidelines as they were then, to our modern constitutional
jurisprudence.
[29]
What is needed, ultimately, is an objective conspectus of all the
facts. Accordingly, “
an
Applicant for condonation must give full explanation for the delay.
In addition, the delay must cover the entire period of delay.
And, what is more, the explanation given must be reasonable.
[18]
It follows that the Applicant’s given explanation falls far
short of the said threshold and is blatantly superficial, to
say the
least. The application is therefore condemned to fail.
[30]
For all these reasons it is not in the interest of justice to grant
condonation for purposes of section 29(3) of
the “LLSA”.
E.
COSTS:
[31]
It is trite practice that the costs follow the cause. Costs are
a matter that resides in the court’s
judicial discretion, after
a consideration of all factors.
[32]
In the circumstances, I make an order as follows; _
The application for
condonation is dismissed with costs.
MG. Phatudi
Judge
of the High Court
Limpopo
Division, Polokwane
REPRESENTATIONS:
1.
Counsel for
the applicant : Adv Skosana SC
On instruction
by
: Ledingwane
attorneys Sunnyside
Sunnyside,
0001
2.
Counsel for
First Respondent : Adv N.A Cassim SC
On instructions
by
: M.M Baloyi
Attorneys
C/o Mashola
& Co Inc
Polokwane
4.
Date
heard
: 05 February 2020
5.
Date handed
down
: 11
May 2020
[1]
Act 3 of 1997, (“LLSA”)
[2]
Paginated Index – p12 “annexure “C’”
“FA”
[3]
Ibid p13, “annexure “C2”.
[4]
Ibid p33, annexure “B” ANSWERING AFFIDAVIT
(“aa”)
[5]
The Summons sets out main cause of action and the
relief claimed (Pleadings Bundle)
[6]
Paginated Index pp34 -35 , “AA”, Email
Annexure “c1), and court order, annexure “c2”,
respectively.
[7]
See, Chirwa v Transnet Ltd & Others (Case no:
CCT78/06) (66), Decided on 28.11.2007 – On the exclusive
jurisdiction
of the Labour Court in all labour matters.
Section 157
of the
Labour Relations Act 66 of 1995
, as amended.
[8]
2011 (3) SA 237
(CC) PARA: 8 at 244.
[9]
Section 3(4)(b)
Act 40 of 2002; section 24 (6) RAF Act,
and section 35, General Law Amendment Act 1945, cited as few
examples.
[10]
[2016] ZASCA 27
(SCA) para: 12.
[11]
Paginated Index, (Condonation) p8, para: 2;9.
[12]
Pp 93 – 101.
[13]
Promotion of Administrative Justice Act, 3 of 2000
[14]
2010(4) 327 (cc) at 341. See also, section 195 (1)(b)
of the Constitution Act 108 of 1996.
[15]
Minister of Agriculture & Land Affairs v C.J Rance
(Pty) Ltd 2010 (4) SA 109 (SCA).
[16]
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(cc)
PARA; [11]
[17]
1962 (4) SA 531
(AD) at 532 C-F.
[18]
Van Wyk v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(cc) AT 477,
PARA: [22] F.G.