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[2018] ZAGPPHC 56
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Minister of Public Works v Motseng Facilities Management (PTY) Ltd (55380/2014) [2018] ZAGPPHC 56 (28 February 2018)
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURTOF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 55380/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
28
FEBRUARY 2018
MIISTER
OF PUBLIC
WORKS
APPLICANT
And
MOTSENG
FACILITIES MANAGEMENT {PTY) LTD
RESPONDENT
LEAVE
TO APPEAL
KHUMALOJ
[1]
The Applicant who is the Minister of Public Works ("the
Minister") is seeking leave to appeal
against an order made by
this court, following the concession the Minister made, conceding to
the issue that was in contention
between the parties. Motseng
Facilities Management (Pty) Ltd, the Respondent, (hereinafter
referred to as "Motseng")
raised an exception against the
Minister's Special Plea as lacking averments that are necessary to
sustain a defence. The Minister
conceded to the Special Plea
admitting that according to the law as it stands (the issue having
been decided by the Supreme Court
of Appeal in the matter of Vhembe
Municipality) the exception should succeed, whereupon the court
upheld the exception and dismissed
the Minister's special plea.
[2]
The Respondent 's claim against the Minister is for payment of an
amount of R50 000 000.00 for contractual
work that Motseng
alleges was rendered to the Minister. The Minister filed a Special
Plea to the effect that Motseng has not complied
with s 3 (1) (a) of
the Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002 ("the Act") in
that Motseng failed to give
notification to the Minister within six months from the date it knew
about the debt, on his intention
to institute legal proceedings and
also with s 3 (2) (b) in that the delayed letter failed to set out
the facts giving rise to
the debt and the particulars of the debt
within Motseng's knowledge nor did Motseng seek condonation for
non-compliance.
[3]
Motseng, had initially conceded to the Special Plea, however with the
ardent aid of new attorneys challenged
the Special Plea on the basis
that the Act was not applicable to his action as it applies only to
claims for damages, his was for
specific performance.
[4]
The Minister, conceding to the rationale of the Respondent's
exception indicated to the court to have
been swayed by the
realisation of the Supreme Court of Appeal (SCA) decision in
Vhembe
District Municipality v Stewarts and Lloyds Trading (Booysens (Pty)
Ltd
2014 (3) All SA 675
(SCA) where the court held that a
contractual claim for specific performance is nut a "debt"
as envisaged in the Act
and therefore no notice in terms of s 3 was
required in respect of such a claim.
[5]
The Minister is now seeking leave to appeal on the grounds that there
is a reasonable prospect that the Supreme
Courts 's
Vhembe
Judgment upon which the order rests may be considered
clearly
wrong
by the court on appeal to it for any one or more of the
following reasons, that:
[5
.1] In
Vhembe
the
legal argument that has arisen in the present matter was not
presented to the court, nor considered by it in reaching its
conclusions.
[5.2]
In
Vhembe
the effect of the drafting history on the conclusion
reached in its
judgment
in particular did not receive consideration.
[5.3]
In
Vhembe
the SCA
moreover
did not fully consider the effect of
its judgment on the purpose of limitation provisions
as
identified by the Constitutional Court in
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1)
SA 124
(CC).
[5.4]
In
Vhembe
the SCA also
did not consider the implications of its judgment for cases in which
a
claim for payment in terms of a contract
(or
the basis upon which it is opposed)
does
depend on the memory of people, and where it would therefore be
desirable that the Defendant be given timeous notice of the
proceedings in order to investigate the contemplated claim and secure
the necessary evidence.
Hence the court
did
not consider the anomalous an inequitable consequence of a lack of
such timeous notice.
[6]
Furthermore, Mr Gauntlet, for the Minister argued that the Minister's
leave to appeal is
alleged to be further based on the compelling
importance of the
SCA reconsidering (its own judgment) a judgment
which stands as a precedent
and therefore precludes the
ventilation before the High Courts throughout the country of
arguments of substance which were not considered by the Supreme
Court of Appeal in
Vhembe.
It is also of
compelling importance that parties in the position of the Defendant
receive the full statutory protection to which
they are entitled.
[7]
In respect of the court that is to hear the appeal, the Minister
argued that :
[7
.1] the matter involve
exclusive questions of
law
warranting an appeal to the SCA. The SCA
is the appropriate court to hear the appeal itself, and therefore
cannot be revisited by
a full bench of the High Court.
[7.2]
The question of law raised is of sufficient general importance to
warrant the SCA" s attention, because it involved claims
for
public money against the organs of state in all spheres of Government
and throughout the Republic .
[8]
In resisting the Application Mr Vorster for Motseng argued that the
Applicant 's stated grounds upon which the Minister believes
there
are prospects of success militates against the principle of
stare
decisis,
moreover the expectation that the
SCA constituted differently might arrive at a different decision,
thus repudiating a binding precedent.
It argued that it is trite that
the SCA is bound by its own decisions unless it is satisfied that its
earlier decisions (s)
were clearly wrong.
[9]
With reference to the matter of
Media 24
Limited v SA Taxi Securitisation (Pty) Ltd
2011
(5) SA 329
(SCA) at [33] and [34], Mr Vorster, pointed out that the
position has been summarised thereat as follows:
"Moreover
as it has been underscored by the Constitutional Court ... the
principle of
stare decisis
is
manifestation of the rule of law itself which in turn is a founding
value of our Constitution. I say this all to accentuate why
mere lip
service to the doctrine of precedent is not enough ; why deviation
from previous decisions should not be undertaken lightly"
[10]
The rule of law must be upheld. The principle is a juridical command
to the courts to respect decisions already
made in a given area of
the law, they being bound by their previous judicial decisions, as
well as decisions of the superior courts,
which are to be followed
even if they are clearly wrong. In
Camps Bay Ratepayers and
Resident Association and Another
2011 (4) SA 42
(CC);
2011 (2)
BCLR 121
(CC) Brands AJ articulated the precedent principle as
follows:
"
Stare decisis'
therefore not simply a matter
of respect for courts of higher authority. It is a manifestation of
the rule of law itself, which
in turn is a founding value of our
Constitution."
[11]
Brand AJ in Media 24 noted the conclusion by various authorities that
'what it boils down to, is: Certainty,
predictability, reliability,
equality, uniformity, convenience: these are the principle advantages
to be gained by a legal system
from the principle of
'stare
decisis'.
He indicated that 'all this to accentuate why mere lip
service to the doctrine of precedent is not enough; why deviation
from previous
decisions should not be undertaken lightly. He
acknowledged the same approach in the matter of
Brisley v Drotsky
2002 (4) SA 1
(SCA) at [8], where the court held that when the
court has taken a policy decision,
they cannot change it just
because they would have decided the matter differently.
The court
concluded that
they must live with that policy decision,
bearing
in mind that litigants and legal practitioners have arranged their
affairs in accordance with that decision.
Unless they are
therefore satisfied that there are good reasons for change, they
should confirm the status a quo.
[12]
The question of application of
stare decisis
is therefore not
a light matter and to be regarded as mandatory. The principle indeed
obligates courts to follow legal precedents
set by previous
decisions,
specifically where the circumstances under which the
decision was made are no different, there being no exceptional
circumstances
that justify deviation or reconsideration thereof.
[13]
In point is the statement of principle by Didcott J in
Credex
Finance (Pty) Ltd v Kuhn
1977 (3) SA 482
(N) concisely summarised
in the headnote to that judgment that:
'The
doctrine of judicial precedent would be subverted if judicial
officers, of their own accord or at the instance of litigants,
were
to refuse to follow decisions binding on them in the hope that
appellate tribunals with the power to do so might be persuaded
to
reverse the decisions and thus to vindicate them
ex
post facto.
Such a course cannot be
tolerated.'
[14]
What therefore determines what is a good reason to deviate from the
principle in the South African context?
We therefore must be
satisfied that the decisions were clearly wrong, or the circumstances
under which the decision was made different,
with the facts
fundamentally distinct or exceptional circumstances prevailing.
[15]
The contentions raised by the Minister are that: In
Vhembe
the
SCA moreover
did not fully consider the effect of its judgment on
the purpose of limitation provisions
as identified by the
Constitutional Court in
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC).
[16]
The Minister here refers to issues of practicality that were raised
in
Moh/omi.
To the contrary, what actually occurred in
Vhembe
is that the court specifically referred to the whole reasoning of
the argument in
Mohlomi
that explained the purpose of notice
provisions in respect of organs of state, premised on the
practicality thereof. Thereat Van
Zyl AJA
concurred with
Rall
AJ 's approach in
Thabani Zulu
&
Co (Pty) Ltd v
Minister of Water Affairs
&
another
2012 (4) SA 91
(KZD) which approach he considered moreover, to be consistent with
the traditional justification for notice provisions, explained
by
Didcott
J in
Mohlomi
as follows:
"An
insistence on notices of the kind required bys 113(1) is by no means
peculiar to the particular proceedings that it governs.
Similar
conditions precedent to the institution of actions are and have long
been familiar features of our statutory terrain, especially
the part
occupied by departments of State, provincial administrations and
local authorities once they become prospective defendants.
The
conventional explanation for demanding prior notification of any
intention to sue such an organ of government 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."
[17]
Van Zyl went further and considered the differentiation made in
respect of none damage claims, especially
contractual debts, again as
correctly observed by Rall AJ in
Thabani Zulu,
and made the following statement:
"the
evidence in damages cases is more likely to depend on the memory of
people than on documents, and it is accordingly desirable
that the
defendant be given timeous notice of the proceedings in order for it
to be able to investigate the contemplated claim,
and to secure the
necessary evidence . By contrast as Lever AJ put it in
Nicor
Consulting
(para 26),, a claim for payment in
terms of a contract is more likely to rely on documentary evidence,
such as contracts, delivery
notes and correspondence, as well as
possible legal issues, such as whether or not the relevant
functionary had the necessary authority
to enter into the contract or
not" . I accordingly hold, as the high court did, that as the
first respondent's cla im is not
a damages claim the Act does not
apply to it. It was therefore unnecessary for the first respondent to
have complied with s 3 of
the Act."
[18]
As a result, in
Vhembe
there was an important consideration of
key aspects by Rall in Thulani of Didcott AJ's analysis in
Mohlomi,
whose
ratio decidendi
was regarded by the court as part of
and the basis of its decision. Consequently resulting in a full
contemplation of the effect
of its decision upholding the
inapplicability of the limitation on contractual claims
[19]
The Minister's further contention was that, in
Vhembe,
the SCA
also did not consider the implications of its judgment for cases in
which a
claim for payment in terms of a contract
(or the basis
upon which it is opposed)
does depend on the memory of people, and
where it would therefore be desirable that the Defendant be given
timeous notice of the
proceedings in order to investigate the
contemplated claim and secure the necessary evidence.
Hence
argued that the court
did not consider the anomalous an
inequitable consequence of a lack of such timeous notice.
[20]
In dealing with the implication of its decision on a claim for
payment in terms of a contract, Van Zyl AJ
referred to Lever AJ's
elucidation in
Nicor Consulting v Northwest 2010 {3} SA
90 at
[26] following a quote from
Mohlomi's
case that reads:
'[9]
... The conventional explanation for demanding prior
notification of any intention to sue an organ of government
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 gett ing embroiled in
litigation at public expense, whether it ought
to accept, reject or
endeavour to settle them.'
and
a submission that the reasons for requiring prior notice of a claim
were also applicable to claims where a balance was claimed
as due in
terms of a contract.
[21]
In addition, Van Zyl AJ supported Lever J's agreement with a
submission made in
Nicor
that where a claim for payment of a
balance due in terms of a contract or where specific performance of a
contract was claimed,
the issues to be decided would generally be far
narrower that the issues to be canvassed in a claim for damages,
whether they were
contractual or delictual damages, consequently the
need for the protection set out in 'conventional explanation' in
Mohlomi's
case would not be compelling in a claim for payment
due in respect of contract as it would in a claim for damages.
[22]
the position in Vhembe resonates with how the proinciple of stare
decisis was navigated in
Caxton Ltd v Reeva forman (Pty) Ltd
[1990] ZASCA 47
.1990 (3) SA 547 (A) and Dhlomo NO v Natal Newspapers
(Pty) Ltd
1989 (1) SA 945
(A).
although in
CAXTON
, it is
true to say that the issue under consideration was not fully
discussed with the court simply accepting that in the light
of DHLOMO
, a trading company can sue for damages in respect of a defamatory
statement. It was held that ‘it however ,does
not render the
decision less binding than one which had been fully discussed. It
found that the first mentioned decision (Dlomo)
was clearly part of
the rationale or basis for the decision ,that is in the parlance of
the doctrine of precedent ,the ratio decideni
[21]
in accordance with the doctrine of precedent,also expressed in the
principle of stare decisis, the SCA is
therefore bound to its
decision in Vhembe and that of the CC in Mohlomo unless if the court
is satisfied that those decisions were
clearly wrong.
[22]
there are no circumstances that warrant the exercise of a courts
discretion in favour of the Minister’s application
for leave to
appeal,there being no prospects of success or a compelling reason
that warrants the matter going on appeal
[23]
it is therefore ordered
1.
Codonation is granted for the one day delay in filing the notice of
application for leave to appeal
2.
The application for leave to appeal is dismissed with costs.
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION,PRETORIA
ON
BEHALF OF APPLICANT
JJ GAUNTLET SC QC
INSTRUCTED
BY
STATE ATTORNY (PRETORIA)
Tel:012
309-1672
Ref:4677/2015/z14/LR
Ref:MR
LETSOKO
ON
BEHALF OF RESPONDENT:
J P VORSTER S.C
VFV
ATTORNEYS
Tel:(012)
460-8704
Ref:SVDM/NE/MAT86836