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[2018] ZAGPPHC 38
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Lerato and Moloko Events Management CC v MEC of the Department of Sport, Arts and Culture: Limpopo Province (15890/13) [2018] ZAGPPHC 38 (9 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 15830/13
LERATO
AND MOLOKO EVENTS MANAGEMENT
PLAINTIFF
CC
(Reg. No. 2004/056908/23)
and
THE
MEC OF THE DEPARTMENT OF SPORT
,
DEFENDANT
ARTS
AND CULTURE: LIMPOPO PROVINCE
JUDGMENT
VAN
DER WESTHUIZEN, J
[1]
The plaintiff instituted proceedings for the payment of a debt for
which the defendant is
allegedly liable. The defendant defends the
action and has filed a notice of exception to the plaintiff's
particulars of claim.
Following
on the notice of exception, the plaintiff amended its particulars of
claim.
[2]
The defendant there upon filed a special plea of prescription and
pleaded over. In its plea
over, the defendant pleaded that there has
been non-compliance with the provisions of s 3 of the Institution of
Legal Proceedings
Against Certain Organs of State Act, 40 of 2002
(the Act).
[3]
Albeit that the plea of non-compliance with s 3 of the Act is not
categorised in the plea as a
"Special Plea", the parties
are agreed that that plea should be adjudicated together with the
special plea on prescription.
[4]
I acceded to the parties' request and the matter before me therefor
only relates to the special
plea of prescription and the plea of non
compliance with the provisions of s 3 of the Act. Should the issue of
non-compliance
with the provisions of s 3 of the Act be decided in
the defendant's favour, it will be decisive of the dispute between
the parties.
The issue of prescription only relates to the cause of
action premised upon the oral agreement and a finding in the
defendant's
favour will dispose of that issue. It is submitted that
the question of enrichment, pleaded in the alternative, will then
require
adjudication.
[5]
The special plea of prescription is premised upon the amended
particulars of claim
now containing an alleged new claim of action.
In the initial particulars of claim the plaintiff relied upon an
agreement between
the parties partly founded upon a written agreement
and partly on an oral agreement for payment of a specified amount. In
the amended
particulars of claim, the cause of action relied upon
relates to an alleged oral agreement for which the same amount, or
"debt",
is claimed. It is common cause
between the parties that the debt premised upon the previously
written portion
of the alleged agreement (the initial cause of
action) was paid. The debt due in respect of the oral portion of the
initial cause
of action was not paid and formed the debt premised
upon the "new" cause of action pleaded in the amended
particulars
of claim.
[6]
A period of three years has elapsed since the institution of the
action for payment of the
"oral" debt, during 2013, and the
amendment to the plaintiff's particulars of claim. The amendment to
the plaintiff's
particulars of claim was effected during January
2018. The alleged oral agreement was concluded during July 2011.
Hence, the defendant's
view that the plaintiff's claim for payment of
that debt has prescribed.
[7]
It is submitted on behalf of the defendant that the "new"
cause of action differs materially
from that initially pleaded. On
that premise, it is then submitted that the interruption of
prescription, by the issuing of the
initial particulars of claim,
does not extend to the "new" cause of action and the claim
has prescribed.
[8]
The defendant submits that the amendment effected to the plaintiffs'
particulars of claim
was introduced to merely avoid the initial plea
of a reliance upon the non-variation clause contained in the aJleged
written agreement
initially relied upon by the plaintiff. Although it
is conceded on behalf of the defendant that the same amount claimed
is founded
upon the same vouchers in the amended particulars of
claim, the defendant submits that the cause of action underlying that
claim
is essentially completely different from what was initially
relied upon.
[9]
It is submitted on behalf of the plaintiff that even if there is an
alleged "new" cause of action pleaded in the amended
particulars of claim, the debt remains the same. That being so. the
plaintiff submits that the interruption of prescription by
way of
service of legal process is determined with reference to the debt
being claimed and not the cause of action underlying that
claim.
[10]
The
Prescription Act, 68 of 1969
, provides in
s 15
thereof as
follows:
"(1)
The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor
of any
process whereby the creditor claims payment of the debt.
(2)
Unless the debtor acknowledges liability, the interruption of
prescription in terms of subsection (1) shall lapse , and the
running
of prescription shall not be deemed to have been interrupted, if the
creditor does not successfully prosecute his claim
under the process
in question to final judgment or if he does so prosecute his claim
but abandons the judgment or the judgment
is set aside.
(3)
,,
[11]
In
CGU
Insurance Ltd v Rumdel Construction (Pty) U
[1]
1
the
Supreme Court of Appeal confirmed that the "debt" referred
to in
s 15
of the
Prescription Act does
not relate to the cause of
action , the material facts, but that, which is "begotten"
by the material facts, i.e. akin
to the relief that is claimed.
[12]
In my view, albeit that the causes of action pleaded in the initial
particulars of
claim and that pleaded in the amended particulars of
claim may be different, the relief claimed in both instances is
identical,
i.e.
the payment of the same debt. The claims in the respective
particulars of claim remain in respect of the same relief and
consequently
the same debt
[13)
It follows that the debt has not prescribed. Accordingly, the
defendant's special plea of prescription stands to be dismissed.
[14]
There remains the issue of a reliance of the non-compliance with s 3
of the Act. That section
provides as follows:
11(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 intention to institute the legal proceedings
in question; or
(b)
the organ of state in question has consented in writing 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.
,,
[15]
The Act defines "debt" as.follows:
"(iii)
'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 Jaw ;
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."
[16]
Applying the canons of construction when interpreting a statute,
contract or other document,
[2]
the definition of debt in the Act in the context of the whole Act and
on a purposive reading thereof, "debt" clearly
only relates
to where damages are claimed in respect of whatever cause of action
underlies the damages.
[17]
The definition of "debt" is narrow in meaning and does not
include reference to compliance with contractual obligations
that do
not relate to liability in respect of damages. That is clearly
indicated by the use of the conjunctive word "and"
between
subsections (a) and (b) of the definition of "debt" in the
Act. To hold that the word "and" is to be
read as meaning
"or" would be forced and untenable. In the context of the
Act as a whole there is no room for interpreting
the word in such a
manner.
[18]
I am fortified in my view by the dicta in
Nicor
IT Consulting (Pfy) Ltd v North West Housing Corporation.
[3]
Although that matter was decided upon a finding that the debtor was
not an organ of state as intended in the Act, and hence that
the Act
did not apply, the court considered the meaning of the definition of
"debt" in the Act. In an
obiter
dictum,
[4]
the
court held that the "debt" referred to in s 3 of the Act,
with reference to the definition thereof in the Act, is
limited to a
claim for damages arising from whatever cause of action. That dictum
is persuasive. I agree therewith.
[19]
In the present instance, the claim against the defendant is one
arising
specified
amount
ex contractu.
The amount claimed, as
recorded earlier, is premised upon vouchers the plaintiff issued to
the defendant. It is not a claim for
damages arising from contractual
obligations. The Act accordingly does not apply.
[20]
It follows that the defendant's plea of non-compliance with the
provisions of s 3 of the
Act stands to be dismissed.
I
grant the following order.
(a)
The defendant's special plea of prescription and plea of non
compliance with the provisions of
s 3
of the
Institution of Legal
Proceedings Against Certain Organs of State Act, 40 of 2002
, is
dismissed.
(b)
The defendant is ordered to pay the plaintiff's costs.
CJ
VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
On
behalf of Applicant:
P J J de Jager SC
L
Coetzee
Instructed
by:
State Attorney
On
behalf of Respondent: R G Beaton SC
Instructed
by:
Pratt Luyt & De Lange
[1]
2004(2) SA 622 (SCA) at [6] -[7]
[2]
Natal
Joint Municipal Pension Fund v Endumani Municipality
2012(4)
SA 593 (SCA)
[3]
2010(3) SA 90
[4]
at [28) to (30)