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[2019] ZANCHC 18
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Pienaar v Minister of Police (1396/2014) [2019] ZANCHC 18 (29 March 2019)
IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION,
KIMBERLEY
Case
No. 1396/2014
Case
Number:
1396/2014
Heard on:
08/03/2019
Delivered on:
29/03/2019
In
the matter between:
ANDREW
SIPHO PIENAAR
PLAINTIFF/APPLICANT
and
THE
MINISTER OF POLICE
DEFENDANT/RESPONDENT
JUDGMENT
MAMOSEBO
J
[1] The
applicant, Mr Andrew Pienaar, is seeking condonation for the late
filing of the Notice of intended
legal proceedings to be given to an
organ of state in terms of s 3 of the Institution of Legal
Proceedings Against Certain Organs
of State Act
[1]
(the
Act). The respondent, the Minister of Police, has filed an
application for the striking out of paras 5.2 to 5.13 of the
applicant’s
replying affidavit in the condonation application.
Both applications were heard simultaneously.
[2] The issues to be considered
are whether condonation should be granted or the matter has
prescribed
as contended by the respondent and whether or not the
paragraphs in the replying affidavit should be struck out.
[3] The applicant was arrested
by the members of the South African Police Services (SAPS) on 17
August 2004
and detained in the Kimberley police cells with his first
court appearance on 19 August 2004. He was detained until 28 August
2004
whereafter he was granted bail. He stood trial until 04 February
2014 when he was acquitted on all charges. He issued summons on
15
August 2014 which was served on the respondent on 16 September 2014.
He claims damages for the unlawful arrest and detention,
contumelia
and pain and suffering to the total amount of R50 000 000.00
(Fifty Million Rand).
[4] The respondent raised two
special pleas filed on 30 March 2015. First, that the claim has
prescribed
and second, that the applicant has failed to comply with s
3 of the Act. In the answering affidavit the respondent’s
contention was that not only has the applicant’s claim
prescribed but the applicant has no prospects of success which he
has
failed to deal with in his founding affidavit. He also challenged the
applicant’s failure to furnish good reasons for
his delay to
serve the notice within the prescribed timeframe and urged the
Court to deny him condonation.
[5] The respondent filed the
application to strike out the impugned paragraphs in the replying
affidavit
on 18 August 2018 contending that they introduced new
issues not canvassed in the founding affidavit.
Removal
of the matter from the roll or postponement of the matter
[6] At the inception of the
proceedings, Mr Mongala, for the applicant, who did not prepare the
heads of
argument, submitted that the matter be removed from the roll
because prescription had to be dealt with separately before
condonation
could be argued. He further submitted that the set down
to argue prescription was the responsibility of the respondent and
that
the matter was not ripe to be heard. Counsel’s
submissions ignored the provisions of s 3(4) (a) and (b) of the Act.
The applicant was obliged to deal with the requirements as outlined
in s 3(4)(b) to the satisfaction of the Court. Having
afforded
Mr Visagie, for the respondent, an opportunity to comment on the
application for the matter to be removed from the roll,
which he
opposed, I refused the application. It was the applicant who set down
the application for condonation and the respondent
was entitled to an
outcome.
[7] In
Take
and Save Trading CC and Others v Standard Bank of SA LTD
[2]
Harms JA remarked:
“
One
of the oldest tricks in the book is the practice of some legal
practitioners, whenever the shoe pinches, to withdraw
from the case
(and more often than not to reappear at a later stage), or of clients
to terminate the mandate (more often than not
at the suggestion of
the
practitioner), to force the court to
grant a postponement because the
party is then unrepresented. Judicial officers have a duty to the
court system, their colleagues,
the public and the parties to ensure
that this abuse is curbed by, in suitable cases, refusing a
postponement. Mere withdrawal
by a practitioner or the mere
termination of a mandate does not, contrary to popular belief,
entitle a party to a postponement
as
of right.”
[8] Having been unsuccessful
with the removal from the roll, counsel for the applicant applied for
a postponement.
Mokgoro J in
National Police Service Union and
Others v Minister of Safety and Security and Others
cautioned:
“
[4]
The postponement of a matter set down for hearing on a particular
date cannot be claimed as of right. An applicant for a postponement
seeks an indulgence from the Court. Such postponement will not be
granted unless this Court is satisfied that it is in the interests
of
justice to do so. In this respect the applicant must show that there
is good cause for the postponement. In order to satisfy
the Court
that good cause does exist, it will be necessary to furnish a full
and satisfactory explanation of the circumstances
that give rise to
the application. Whether a postponement will be granted is therefore
in the discretion of the Court and cannot
be secured by mere
agreement between the parties. In exercising that discretion, this
Court will take into account a number of
factors, including (but not
limited to): whether the application has been timeously made, whether
the explanation given by the
applicant for postponement is full and
satisfactory, whether there is prejudice to any of the parties and
whether the application
is opposed. All these factors will be weighed
by the Court to determine whether it is in the interests of justice
to grant the
postponement.”
Having heard both parties I was of
the view that the reasons advanced are not persuasive and refused a
postponement.
Striking
out of paragraphs 5.2 – 5.13 of the replying affidavit of the
applicant
[9] Mr Mongala, for the
applicant, gave the excuse that he was unaware of the application to
strike out
until he was shown the papers by Mr Visagie just before
the matter was argued. According to him, the striking out application
did
not form part of his brief. This is surprising because the
notice of set down for the application to strike out was served
on
Magoma Attorneys, the correspondent attorneys in Kimberley on behalf
of the instructing attorneys, Moleko Ratau Attorneys, on
20 February
2018 at 10:59 and was filed on the same day. Further, on 23 February
2018 Stanton AJ granted an order by agreement
that the main
application and the application to strike out be postponed to 18 May
2018 on the opposed roll and costs be costs
in the application.
Mr Mogoma was in Court when this application was argued before me.
Needless to say more.
[10] These are the impugned paragraphs
sought to be struck out by the respondent 5.2 – 5.13:
“
5.1
I deny the contents of the allegations herein contained and
respondent is put to
the proof thereof.
5.2 I submit
that I am 90% blind and my condition was aggravated as a result of
the
criminal case instituted against me. (See annexure
“MA1”herein attached).
5.3 The
respondent’s employees came and arrested me (a semi blind
person)
without proper[ly] assessing the success of
their case for an armed robbery case.
5.4 I submit
that had the employees of the respondent properly investigated the
case
before arresting me they could have seen that I
could not have been able to
commit the crime of armed robbery against a complainant in Kimberley.
5.5 I further
submit that due to the financial constraints and my precarious health
I
had to wait until the criminal case was
concluded and I was found not guilty by
the Regional Court presiding officer only on the 6
th
February 2014. Ten (10) years after I was charged
with the said offence and no evidence was led
incriminating me.
5.6 The person
who committed the crime pleaded guilty and was sentenced to about
15 years during the process after separation of the trials. The State
would not
withdraw the charges against me but continued until I was acquitted
of the
charge of armed robbery.
5.7 The formal
letter of demand was addressed to the respondent on 14 April 2014
and confirmation of receipt thereof was
acknowledged by the respondent on the
16 April 2014. (See Annexure “MA2”herein attached).
5.8 The
respondent’s national office advised in the letter that the
demand letter will
be forwarded to the province in
whose jurisdiction the cause of action arose. I
submit
that from the 6
th
February 2014 up to the 16
th
September 2014 when the
respondent’s office in Kimberley received
my letter of demand,
such demand
had long been made against the principal
office in Pretoria.
5.9 With
regards to the merits of the case, I submit that it was the testimony
of the
complainant who testified that
prior to him being robbed a certain person
telephoned him from a public phone booth in Eldorado Park and the
said person demanded that the complainant must pay him
the
amount of two million.
5.10 After the telephone
conversation the complainant made a reverse call to the
public telephone and a woman answered the phone. The woman described
to the complainant the
person
who made the phone call and when the complainant
was
robbed he testified that he concluded that the robbers were sent
to rob him by me.
5.11 I was not arrested at
the scene of crime, I was picked up by members of the
police force at Southgate mall and I was incarcerated for about three
weeks before I could
be granted
bail.
5.12 From 2004 until 6
th
February 2014 I had to travel from Alexander to Kimberley
at my own expense.
5.13 I am a lay person
almost blind and elderly, I could not have known before the
case was finalised that I was supposed
to institute action against the respondent.”
Counsel submitted that the
aforementioned paragraphs were furnished to clarify facts or
substantiate averments in the founding affidavit.
[11] Mr Visagie relied on
Titty’s Bar
and Bottle Store (Pty) Ltd v A.B.C. Garage (Pty) Ltd and Others
[3]
where the following
remarks were made:
“
It
has always been the practice of the Courts in South Africa to strike
out matter in replying affidavits which should have appeared
in
petitions or founding affidavits, including facts to establish
locus
standi
or the jurisdiction of the
Court.”
The
founding affidavit dealt with the background information including
the arrest and detention periods. It was only at para 8 of
the
founding affidavit where the following purports to deal with the
reasons and explanation for the late notice:
“
I
submit that I only instituted a formal notice to respondent on the
14
th
day of April 2014 after I consulted with my attorney of record the
reason being that I did not have financial means to bring the
action
on an earlier time as I was attending the trial and which was only
finalised on the 14
th
day of April 2014 and where I was found not guilty.”
[12] Rule 6(15)
[4]
stipulates that:
“
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant,
with an
appropriate order as to costs, including costs as between attorney
and client. The court may not grant the application
unless it is
satisfied that the applicant will be prejudiced if the application is
not granted.”
[13] The applicant did raise new issues in
reply. What exacerbates matters is that he did not embrace the
opportunity
to oppose the application for the striking out. It
came before me unopposed. A case must be made out in the
founding
affidavit. Regard being had to the quoted paragraphs,
they do raise new evidence and stand to be struck out.
Condonation
[14] Section 3(1)(a) of the Act stipulates:
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 legal proceedings
in
question.”
(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 s 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 knowledge of the creditor
(5)(b)Despite paragraph (a), any process by which any
legal proceedings
contemplated
in section 3 (1) are instituted and in which the –
(ii) Minister for Safety and Security is the
defendant or respondent, may be served on –
(aa)
the National Commissioner of the South African Police Service
as defined in section 1 of the South African
Police Service
Act, 1995 (Act 68 of
1995); or
(bb)
the Provincial Commissioner of the South African Police
Service as defined in
section 1
of the
South African Police Service
Act, 1995
, of the province in which the cause of
action arose.”
[15] The applicant, legally assisted by his
attorney, Mr CM Leballo of CM Leballo Attorneys, filed a notice
addressed
to the office of the Minister of South African Police dated
14 April 2014 which was sent by registered mail. The Act requires the
notice to be served on the organ of state within six months of the
debt becoming due. The alleged unlawful arrest and detention
took
place on 17 August 2004 and the notice was served almost ten years
later. In his founding affidavit the applicant cited as
his reason
for serving the notice on the respondent on 14 April 2014 as lacking
financial means; attending trial; and ignorance
of the
requirement to file the notice within six months of his arrest.
[16] In the minutes of the pre-trial
conference held on 31 March 2017 attended by Mr Michael Mokobi of
Moleko Ratau
Attorneys, for the applicant, and Mr P Visagie from the
Office of the State Attorney, for the respondent, the special plea
for
non-compliance with s 3 of the Act was raised and the parties
agreed that the application for condonation for the non-compliance
ought to be heard first. That being the case Mr Mongala submitted
that there was no need for a condonation application because
the
notice dated 14 April 2014 was within the prescribed six months
period.
[17] In
Uitenhage
Transitional Local Council v South African Revenue Service
[5]
the Supreme Court of Appeal stated:
“
One would have hoped that the many
admonitions concerning what is required of an applicant in a
condonation application would be
trite knowledge among practitioners
who are entrusted with the preparation of appeals to this Court:
condonation is not to be had
merely for the asking; a full, detailed
and accurate account of the causes of the delay and their effects
must be furnished so
as to enable the Court to understand clearly the
reasons and to assess the responsibility. It must be obvious that, if
the
non-compliance is time-related then the
date, duration and extent of any obstacle on which reliance is placed
must be spelled out.”
See also
Commissioner
For Inland Revenue v Burger
[6]
[18] Section 3(4) stipulates:
“
(a)
If an organ of state relies on a creditor’s failure to serve a
notice in terms of subsection (2)(a), the creditor must
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.”
(Own emphasis added). These requirements are conjunctive and must be
established by the applicant
in the
condonation application.
[19] It is common cause
that the applicant’s intended cause of action was a claim for
damages arising from the
applicant’s arrest and
detention. This is a claim that aims to recover a debt as defined in
s 1 of the Act
[7]
and that although the respondent is cited as the Minister of Police
the action is aimed at an organ of state.
Debt
extinguished by prescription
[20] Counsel for the applicant made the
submission that the papers have not dealt with prescription because
it was dependent
upon the respondent bringing an application for
prescription. This submission has not taken into consideration
s 3(4)(b)(i).
For the Court to be satisfied that condonation may be
granted, it must be convinced that the claim has not prescribed. It
will
serve no purpose if the claim is extinguished by prescription
and condonation is nevertheless granted.
[21] The Supreme Court of
Appeal in
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[8]
made these
insightful remarks:
“
[13]
In considering whether condonation was rightly granted it is
instructive to bear in mind why notices of the
kind contemplated in s
3 of the Act have been insisted on by the legislature. Statutory
requirements of notice have long been familiar
features of South
Africa’s legal landscape. The conventional explanation for
demanding prior notification of intention to
sue organs of State, is
that, ‘with its extensive activities and large staff which
tends to shift it needs the opportunity
to investigate claims laid
against it, to consider them responsibly and to decide, before
getting embroiled in litigation at public
expense, whether it ought
to accept, reject or endeavour to settle them’. From time to
time there have been judicial pronouncements
about how such
provisions restrict the rights of its potential litigants. However,
their legitimacy and constitutionality is not
in issue.”
[22] As pointed out, the
applicant issued his Notice to the on 14 April 2014. The statutory
requirement is that the
notice must be served on the organ of state
within six months from the date on which the debt became due. The
Notice must briefly
set out the facts giving rise to the debt
[9]
and such particulars of the debt as are within the knowledge of the
creditor
[10]
.
Mr Visagie argued that the debt became due when the applicant was
arrested, that is, from 17 August 2004 and imputes that
the applicant
knew at that time that the arrest and its subsequent detention were
unlawful.
[23] Counsel for the applicant on the other
hand submitted that the debt became due only after the applicant’s
acquittal by the regional court on 04 February 2014; that
because the applicant is not only claiming for the unlawful arrest
and detention but for damages consequent upon the wrongful actions
until his acquittal. It was in fact unnecessary for the applicant
to
have brought the condonation application, the argument went.
[24] It is crucial for
this Court to determine whether prescription started to run on 17
August 2004 or on 04 February 2014.
Section 12 of the
Prescription Act
[11]
is relevant and reads:
“
12
When prescription begins to run –
(1)
Subject
to the provisions of subsections (2) and (3), 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
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.”
[25] Nothing in the
papers demonstrates that the applicant was wilfully prevented from
coming to know about the existence
of the debt. He evidently enjoyed
legal representation early in his criminal trial. Legal advice
was therefore at hand. The
applicant certainly knew the debtor
and the facts from which the debt arose. All that was argued was that
he had to wait for his
acquittal in order to incorporate the
delictual claim of pain and suffering. The facts from which the
debt arise are facts
which the creditor would need to prove in order
to establish the liability of a debtor. See
Mtokonya
v Minister of Police
[12]
and
Links v MEC for
Health, Northern Cape
[13]
.
This
requirement does not, in anyway, require a creditor to have knowledge
of the law or legal opinion or conclusions or even
the availability
in law of a remedy.
[26] Moseneke J, as he
then was, in an unreported judgment
Eskom
v Bojanala Platinum District Municipality
[14]
are
relevant
:
“
[16]
In my view, there is no merit in the contention advanced on behalf of
the plaintiff that prescription began to run only on
the date the
judgment of the SCA was delivered. The essence of this submission is
that a claim or debt does not become due when
the facts from which it
arose are known to the claimant, but only when such claimant has
acquired certainty in regard to the law
and attendant rights and
obligations that might be applicable to such a debt. If such a
construction were to be placed on the provisions
of section 12(3)
grave absurdity would arise. These provisions regulating prescription
of claims would be rendered nugatory and
ineffectual. Prescription
periods would be rendered elastic, open ended and contingent upon the
claimant’s subjective sense
of legal certainty. On this
contention, every claimant would be entitled to have legal certainty
before the debt it seeks to enforce
becomes or is deemed to be due.
In my view, legal certainty does not constitute a fact from which a
debt arises under section 12(3).
A claimant cannot blissfully await
authoritative, final and binding judicial pronouncements before its
debt becomes due, or before
it is deemed to have knowledge of the
facts from which the debt arises.”
[27]
The
position is summed up succinctly by the Supreme Court of Appeal in
Minister of Finance
v Gore N.O.
[15]
where the following
was said:
“
[17]
This Court has, in a series of decisions, emphasised that time begins
to run against the creditor when it has the minimum facts
that are
necessary to institute action. The running of prescription is not
postponed until a creditor becomes aware of the full
extent of its
legal rights…”
It
is therefore my view that the facts from which the debt arose for the
prescriptive period to start running was upon the arrest,
or shortly
thereafter, of the applicant, which is when the first known harm
became due and payable. It was not necessary to wait
for the
knowledge of the relevant legal conclusions or the termination of
legal proceedings.
Does
good cause exist for the failure by the creditor
[28] On 17 August 2004 the applicant was
aware that he was arrested by the members of the South African Police
Services
(SAPS). That fact is clear from his para 5 of the founding
affidavit to the condonation application which in part reads:
“…
I
was arrested on the 17
th
day of August 2004 by the members of the South African Police
Services whose full names and rank are currently to me unknown,
whilst acting within the course and scope of their employment with
the defendant on [a] charge of robbery with aggravating circumstances
and who were acting on instructions and acting in their capacity as
employees of the respondent.”
[29] The only reasons
that appear in the applicant’s founding affidavit, as stated
earlier are found at para 8, namely
that he lacked financial means
and was attending to trial. The Constitutional Court in
Food
and Allied Workers’ Union obo Gaoshubelwe v Pieman’s
Pantry (Pty) Limited
[16]
pronounced:
“
[144]
The starting point in the interpretative exercise that section 16(1)
of the Prescription Act contemplates is to properly recognise
that
its interpretation must occur against the backdrop of the
Constitution and the values it seeks to advance. This being the
case,
this Court, in
Mohlomi
[17]
,
recognised that time periods in general
restrict the right of access to courts. It has also expressed itself
decisively to the effect
that the timeous resolution of disputes,
which time periods seek to engender, enhances the quality of
adjudication that must ultimately
be the outcome of the assertion of
a right of access to courts.”
[30] Importantly, the Act
does not define ‘good cause’. In
Silber
v Ozen Wholesalers (Pty) Ltd
[18]
the
Court remarked:
“
The
meaning of ‘good cause’ in the present sub-rule, like
that of the practically synonymous expression ‘sufficient
cause’ which was considered by this Court in
Cairn’s
Executors v Gaarn,
1912 A.D.181, should
not lightly be made the subject of further definition. For to do so
may inconveniently interfere with the application
of the provision to
cases not at present in contemplation. There are many decisions in
which the same or similar expressions have
been applied in the
granting or refusal of different kinds of procedural relief. It is
enough 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.”
[31] Prudently, it would
have assisted the applicant to have dealt with the prospects of
success in his application.
Heher JA in
Madinda
v Minister of Safety and Security
[19]
made the following
remarks:
“
[10]
The second requirement is a variant of one well known in cases of
procedural non-compliance. See
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996
(1) SA 215
(W) at 227I – 228F and cases there cited. ‘Good
cause’ looks at all those factors which bear on the fairness of
granting the relief as between the parties and as affecting the
proper administration of justice. In any given factual complex
it may
be that only some of many such possible factors become relevant.
These may include prospects of success in the proposed
action, the
reasons for the delay, the sufficiency of the explanation offered,
the
bona fides
of
the applicant, and any contribution by other persons or parties to
the delay and the applicant’s responsibility therefore.”
[32] Good cause as
pointed out in
Madida
[20]
is also
linked to the failure to act timeously. This failure has a bearing on
the discretion which is exercised by the court
in determining whether
or not to grant condonation. The explanation proffered by the
applicant in the matter before me is
inadequate and does not enable
the Court to appreciate the inordinate delay of ten years. Regard
being had to the provisions of
s3(3)(a), it cannot be a valid excuse
that the applicant’s attorneys lacked the requisite knowledge
to advice on of the relevant
organ of state following an alleged
unlawful arrest. The onus lay on the applicant to show good cause for
the wanton delay which
he has lamentably failed to do. In
Salojee
and Another NNO v Minister of Community Development
[21]
the Appellate Division stated that there comes a time when it becomes
obvious even to a lay person that there is a protracted delay,
he
cannot sit passively by without directing a reminder or enquiry to
his legal representative about the case. It will be difficult
to
justify granting condonation unless there are strong prospects of
success. In the case before me prospects of success have not
been
addressed.
The
organ of state was not unreasonably prejudiced
[33] The onus to show the
absence of prejudice lies with the applicant. As pointed out in
Madinda
[22]
dealing with good cause and absence of unreasonable prejudice
separately may be intended to strike a balance between
the
individual’s right of access to justice and the protection of
state interest in receiving timeous and adequate notice.
[34] The applicant has
failed to deal with the requirement of prejudice in his papers. Mr
Visagie submitted that the
respondent stands to be prejudiced by the
effluxion of time since the arrest. The conclusion by Zondo J,
as he then was,
in
Mtokonya
[23]
is enlightening
where the following was said:
“
[84]
In conclusion I can do no better than repeat what this Court said in
Mdeyide
about
the vital importance of prescription. In that case, this Court said:
‘
This Court has repeatedly emphasised the
vital role time limits play in bringing certainty and
stability to social
and legal affairs, and maintaining the quality of
adjudication. Without prescription periods, legal
disputes would
have the
potential to be drawn out for indefinite periods of time, bringing
about
prolonged uncertainty to the parties to the dispute. The
quality of
adjudication
by courts is likely to suffer as time
passes, because evidence may
have become lost, witnesses may no longer be
available to testify, or their
recollection of
events may have faded. The quality of adjudication is central to the
rule of law.
For the law to be respected, decisions of courts
must be given as soon as possible after the
events
giving rise to disputes, and must follow from sound reasoning,
based on the best
available
evidence.’
Already, creditors have enough time to institute
proceedings under the Prescription Act. The minimum period is three
years. There
is no need to stretch the extinctive period to more than
three years as a norm.”
[35] As prescribed in s 3(4)(b) the Court
can only grant condonation once it is satisfied that the three
requirements
have been met. The contention that the six month period
started running from February 2014 lacks merit and is rejected. I
therefore
find that the applicant’s debt arose in August 2004
and granting him condonation for the late filing of a Notice which
was
filed ten years later will not serve the interests of justice.
By the time summons was issued on 15 August 2014 the claim
had long
prescribed. I agree with the submissions made on behalf of the
respondent that there will be unreasonable prejudice to
the
respondent.
Costs
[36] There is no reason why costs should not
follow suit.
[37] In the result, I
make the following order:
1.
The application for condonation for the applicant’s failure to
serve
the Notice contemplated in
s 3(1)(a)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act, 40 of 2002
, within
the period laid down in s
3(2)(a) of the Act is dismissed with costs.
2.
The respondent’s application to strike out paras 5.2 to 5.13 of
the
applicant’s replying
affidavit is granted with costs.
MAMOSEBO J
NORTHERN CAPE DIVISION
For the applicant:
Adv JK
Mongala
Instructed by:
Moleko Ratau Attorneys
c/o Magoma Attorneys
For the respondent:
Mr P Visagie
Justice
Centre, Kimberley
[1]
Act 40 of 2002.
[2]
2004(4) SA 1 (SCA) at 4G – 5B
[3]
1974 (4) SA 362
(T) at 368H
[4]
Uniform Rules of Court
[5]
2004 (1) SA 292
(SCA) para 6
[6]
1956 (4) SA 446
(A) at 449G - H
[7]
“debt means any debt arising from any cause of action –
(a) Which arises from delictual, contractual or any other
liability, including a cause of action which relates to
or arises
from any –
(i) act performed
under or in terms of any law; or
(ii) omission to do
anything which should have been done under or in terms of any law;
and
(b) For which an organ of state is liable for payment of
damages, whether such debt became due before or after the
fixed
date.
[8]
2010 (4) SA 109
(SCA) at 113 para 13
[9]
Section 3(2)(b)(i)
[10]
Section 3(2)(b)(ii)
[11]
Act 68 of 1969
[12]
[2017] ZACC 33
;
2017 (11) BCLR 1443
(CC);
2018 (5) SA 22
(CC) at
[13]
[2016] ZACC 10; 2016 (4) SA 414 (CC)
[14]
2003 JDR 0498 (T) at para 16. Also quoted by Saner in his book:
“Prescription in SA Law”(Issue 23 3 – 98)
[15]
2007 (1) SA 111
(SCA) at para 17
[16]
[2018] ZACC 7
at para 144
[17]
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC);
1996 (12) BCLR 1559
(CC) at paras 11 -12
[18]
1954 (2) SA 345
(A) at 352H – 353A
[19]
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at 316E (para 10)
[20]
Page 317 para 14
[21]
1965 (2) SA 135
(A) at 141E -H
[22]
Page 318B (para 15)
[23]
At para 84