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[2008] ZASCA 103
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Minister of Safety and Security v De Witt (588/2007) [2008] ZASCA 103; 2009 (1) SA 457 (SCA) (19 September 2008)
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THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
CASE
NO: 588/2007
THE
MINISTER OF SAFETY AND SECURITY
a
ppellant
and
AUGUSTUS
JOHN DE WITT Respondent
Neutral
citation: Minister of Safety and Security v De Witt (722/2007) 103
[2008] ZASCA (19
September 2008)
Coram
: Brand,
Lewis and Ponnan JJA
Heard
:
11
September 2008
Delivered:
19
September 2008
Summary:
Section
3(4) of the Institution of Legal Proceedings Against Certain Organs
of State Act 40 of 2002 permits a court to condone a
litigant’s
failure to give a valid notice required by s 3(1), prior to
instituting legal proceedings, if the debt has not
been extinguished
by prescription, good cause is shown and the debtor is not
prejudiced. Application for condonation may be made
by the creditor
even after proceedings have been instituted if the debt has not
prescribed.
ORDER
On appeal from High Court, Cape Town
(Eastern Circuit)
(Fourie J sitting as
court of first instance).
The appeal is dismissed with costs.
JUDGMENT
LEWIS JA (Brand and Ponnan JJA concurring)
[1] This appeal turns on the interpretation of
s 3
of the
Institution of Legal Proceedings Against Certain Organs of
State Act 40 of 2002
. The Act was introduced to harmonize periods of
prescription of debts owed by organs of state, and to make provision
for a uniform
requirement for the giving of notice in connection with
the institution of legal proceedings. It repealed several statutes
that
had previously regulated proceedings against various state
bodies such as the police and the defence force. And it came after a
decision in the Constitutional Court –
Mohlomi
v Minister of Defence
1
- in which it was held that s 113(1) of the Defence Act
2
was unconstitutional since it made no allowance for failure timeously
to notify the defence force of the intention to sue it, despite
the
circumstances.
[2]
The Act is meant not
only to bring consistency to procedural requirements for litigating
against organs of state but also, it is
clear, to render them
compliant with the Constitution. The way in which it seeks to achieve
a procedure that is not arbitrary and
that operates efficiently and
fairly both for a plaintiff and an organ of state is to give a court
the power to condone a plaintiff’s
non-compliance with
procedural requirements in certain circumstances. Thus access to
courts is facilitated, while at the same time
procedures against
large governmental organizations that need to keep their affairs in
order are regulated.
[3]
The purpose of
having special requirements in place for the institution of action
against a state body is well-recognized and was
put thus by Didcott J
in
Mohlomi
:
3
‘
Rules that limit the time
during which litigation may be launched are common in our legal
system as well as many others. Inordinate
delays in litigating damage
the interests of justice. They protract the disputes over the rights
and obligations sought to be enforced,
prolonging the uncertainty of
all concerned about their affairs. Nor in the end is it always
possible to adjudicate satisfactorily
on cases that have gone stale.
By then witnesses may no longer be available to testify. The memories
of ones whose testimony can
still be obtained may have faded and
become unreliable. Documentary evidence may have disappeared. Such
rules prevent procrastination
and those harmful consequences of it.
They thus serve a purpose to which no exception in principle can
cogently be taken.
It does not follow, however,
that all limitations which achieve a result so laudable are
constitutionally sound for that reason.
Each must nevertheless be
scrutinised to see whether its own particular range and terms are
compatible with the right which s 22
bestows on everyone to have his
or her justiciable disputes settled by a court of law. The right is
denied altogether, of course,
whenever an action gets barred
eventually because it was not instituted within the time allowed. But
the prospect of such an outcome
is inherent in every case, no matter
how generous or meagre the allowance may have been there, and it does
not
per se
dispose
of the point, as I view that at any rate. What counts rather, I
believe, is the sufficiency or insufficiency, the adequacy
or
inadequacy, of the room which the limitation leaves open in the
beginning for the exercise of the right. For the consistency
of the
limitation with the right depends upon the availability of an initial
opportunity to exercise the right that amounts, in
all the
circumstances characterising the class of case in question, to a real
and fair one. The test, thus formulated, lends itself
to no hard and
fast rule which shows us where to draw the line.’
[4]
As I have said, the
way in which the legislature has sought to avoid drawing a hard and
fast rule that may cause undue hardship
to a plaintiff is to make
provision for time limits, and notices of intention to sue, but to
enable a court to condone a failure
to comply with the requirements.
Section 3(4) gives the court a discretion to condone non-compliance,
subject to three requirements
being met.
Section 3 reads:
‘
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) For purposes of subsection
(2)(a)-
(a) a debt may not be regarded
as being due until the creditor has knowledge of the identity of the
organ of state and of the
facts giving rise to the debt, but a
creditor must be regarded as having acquired such knowledge as soon
as he or she or it could
have acquired it by exercising reasonable
care, unless the organ of state wilfully prevented him or her or it
from acquiring such
knowledge; and
(b) a debt referred to in
section 2(2)(a), must be regarded as having become due on the fixed
date.
(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.
. . . .’
[5] The section has been the subject of interpretation in several
cases already. In particular, the requirements of good cause
and
absence of prejudice to the organ of state for condonation to be
granted, set out in s 3(4)(b), were discussed by this court
in
Madinda v Minister of Safety and Security
.
4
At issue in this case is a different question: where no notice is
given by the creditor, or where the notice is defective in some
respect, but the legal proceedings are instituted
before the expiry of the prescription period, may a court
condone the failure to give notice, or the giving of defective
notice,
after the summons or application has been served? The
question takes on added significance where proceedings are served
before
the prescriptive period has ended, but notice is served only
after that date, or where notice has been served before the
prescriptive
period has ended but does not comply with s 3(2).
[6] The respondent, John de Witt, together with two other men, was
arrested and detained by members of the South African Police
Services
on 29 May 2004. On 15 June 2004 he was freed on bail. Nearly two
years later, on 19 April 2006, De Witt’s attorneys
sent a
letter to the Minister advising of his intention to sue for wrongful
arrest and detention. On 29 May 2006 the National Commissioner
of
Police rejected the notice since it was not sent within six months of
the date on which the debt became due (s 3(2)(a)). On
6 February
2007 De Witt and the two men with whom he was arrested and held
issued a summons on the Minister claiming damages. The
summons was
served a week later, on 13 February 2007. It is not disputed that the
summons was served before the debt had become
prescribed under the
Prescription Act 68 of 1969
, being served within three years from the
date of arrest and detention.
[7] For some inexplicable reason the failure of one of the other two
plaintifffs to give timeous notice was ‘condoned’
by the
Minister. De Witt, however, met an objection to his summons, the
Minister claiming in a special plea that because no timeous
notice
had been served before the summons was served, the claim had
prescribed. He thus sought condonation of his failure to send
the
notice timeously, and the Cape High Court granted it, finding that it
is open to a plaintiff to seek condonation for non-compliance
with
s
3(2)
after a summons has been served.
[8]
We were referred to
a number of decisions of the high courts in which condonation in
similar circumstances was granted.
5
The only case of which I am aware that has found that condonation
cannot be granted after a summons has been served, and when the
case
is pending, is that of a full court of the Natal High Court in
Legal
Aid Board & others v Singh.
6
I shall return to the reasoning in that case briefly.
[9]
The argument for the
Minister is that decisions granting condonation after summons has
been served, and where no valid notice required
in
s 3(2)
has been
given, do not have regard to the peremptory nature of the wording of
s 3(1).
The section expressly refers to notice of
intended
legal proceedings, and is peremptory: no legal proceedings
may
7
be instituted against an organ of state
unless
the creditor has given notice in writing of his or her intention to
sue, or unless the organ of state has consented in writing
to the
institution of legal proceedings without notice, or despite a
defective notice. Second,
s 3(2)
provides that the notice
must
be served on the organ of state within six months from the date on
which the debt became due. These peremptory words, it is argued,
have
the consequence that condonation cannot be granted unless a valid,
timeous notice is served before a summons purporting to
interrupt
prescription can be effective.
[10]
In my view, the
argument loses sight of the purpose of condonation: it is to allow
the action to proceed
despite the fact
that the peremptory provisions of
s 3(1)
have not been complied with.
Section 3
must be read as a whole. First, it sets out the
prerequisites for the institution of action against an organ of
state: either a
written notice or consent by the organ of state to
dispense with the notice. Second, it states the requirements that
must be met
in order for the notice to be valid. And third, it states
what the creditor may do should he or she have failed to comply with
the requirements of subsecs (1) and (2): he or she may apply for
condonation for the failure. Thus either a complete failure to
send a
notice, or the sending of a defective notice, entitles a creditor to
make the application. Even this is qualified: it is
only ‘if an
organ of state
relies
on a creditor’s failure to serve a notice’ that the
creditor may apply for condonation. If the organ of state makes
no
objection to the absence of a notice, or a valid notice, then no
condonation is required. In fact, therefore, the objection
of the
organ of state is a jurisdictional fact for an application for
condonation, absent which the application would not be competent.
[11]
It follows that
where no notice at all is given by the creditor, and the organ of
state relies on the failure, the creditor can
nonetheless apply for
condonation. A fortiori, if the notice is sent out of time,
condonation may be granted. The argument that
the application for
condonation must precede the issue and service of summons (and that
if it does not the summons is ineffective)
is unpersuasive. It should
also be borne in mind that where no notice is given, the organ of
state’s objection will in all
likelihood only be made for the
first time after proceedings have been instituted.
[12]
The very purpose of
the provision allowing condonation is to give a court a discretion to
determine whether the organ of state
can rely on non-compliance,
whatever form that may take. If this were not so, as was pointed out
by Somyalo AJ in
Moise
,
8
the requirement of written notice as a precondition to the
institution of legal proceedings would be in itself an absolute bar
to such proceedings and would constitute a real impediment to the
claimant’s access to court. Indeed, a blanket bar to the
amelioration by a court of the hardship worked by an inflexible
precondition to the institution of proceedings could hardly survive
constitutional scrutiny.
[1
3] The discretion may
only be exercised, however, if the three criteria in
s 3(4)(b)
are
met: that the debt has not been extinguished by prescription (at
issue in this case); that good cause exists for the creditor’s
failure; and that the organ of state has not been unduly prejudiced.
The Minister does not rely on either of the latter two criteria
in
this appeal.
[14
] The conclusion that
it is open to a creditor to apply for condonation after instituting
legal proceedings is borne out also by
the definition of ‘creditor’
in the Act. A ‘creditor’ means a person who ‘intends
to institute legal
proceedings’ or ‘
who
has instituted such proceedings
’.
The creditor who has already instituted proceedings may thus apply
for condonation if the organ of state relies on the
creditor’s
failure to serve a valid notice before proceedings are instituted.
[15
] The counter
argument to this conclusion is that
s 3(4)(c)
provides that if an
application for condonation is granted the ‘court may grant
leave to institute legal proceedings’.
This suggests, it is
argued, that condonation cannot be granted after proceedings have
already been instituted. The argument carries
no force, in my view.
The application for condonation is just that. It does not necessarily
embody also an application for leave
to institute proceedings. But if
it does, then clearly the court may grant such leave. If, however,
proceedings have already been
instituted, as in this case, then there
is no need to provide that the court may grant leave. Expressly
empowering a court to grant
leave to sue does not impliedly mean that
one cannot sue before applying for condonation.
[1
6] Further support for
the view that complete non-compliance may be condoned is to be found
in the provision that the organ of state
may in writing consent to
non-compliance
(s 3(1)(b)).
It would be extraordinary if the debtor
could in effect condone the creditor’s non-compliance, but not
the court.
[17
] In
Legal
Aid Board
9
Theron J concluded that because
section 3(1)
is couched in peremptory
terms, a court has no power to condone a failure to serve a notice
prior to the creditor’s institution
of action. Her finding that
‘The court does not have the power to condone the institution
of legal proceedings in circumstances
where the provisions of
s 3(1)
have not been complied with’ is in my view incorrect. It fails
to take into account the purpose of condonation which is to
forgive
non-compliance or faulty compliance provided that the criteria in
s
3(4)(b)
are met, and does not accord with an earlier statement in the
judgment that
s 3(4)(a)
‘confers upon the creditor the right to
apply for condonation of the failure to comply with the provisions of
s 3(1).
’
10
anc" HREF="#sdfootnote10sym">
10
[1
8] Similarly, although
the court below correctly found that condonation should be granted to
De Witt for his late service of notice,
the court’s statement
that condonation cannot be granted where no notice at all is served
is incorrect. It is not consonant
with the wording of
s 3
or its
purpose.
[19] Finally, the Minister argues that condonation cannot be sought
after the institution of proceedings because of the peremptory
wording of
s 5
of the Act. The relevant parts of
section 5
read:
‘
5 Service of process
(1) (a) Any process by which
any legal proceedings contemplated in
section 3
(1) are instituted
must be served in the manner prescribed by the rules of the court in
question for the service of process.
. . . . .
(2)
No
process referred to in subsection (1) may be served as contemplated
in that subsection before the expiry of a period of 30 days
after the
notice, where applicable, has been served on the organ of state in
terms of
section 3
(2) (a)
(my emphasis).
(3) If any process referred to
in subsection (1) has been served as contemplated in that subsection
before the expiry of the period
referred to in subsection (2), such
process must be regarded as having been served on the first day after
the expiry of the said
period.’
[20
] In my view,
s 5
applies only to the normal situation where notice has been given
timeously: the creditor must wait for 30 days before instituting
proceedings. Nothing in the section overrides the court’s power
to condone the failure to give notice at all, nor the giving
of
defective notice. Where condonation is warranted
s 5
simply does not
apply.
[2
1] In the
circumstances, I consider that because De Witt’s summons was
issued and served before the end of the prescriptive
period, the
court had a discretion to condone De Witt’s late service of
notice on the Minister after the proceedings were
instituted. Since
it was not contended before us that De Witt had not shown good cause
for his delay, nor that the Minister was
unduly prejudiced,
condonation was correctly granted by the court below.
[22
] The appeal is
dismissed with costs.
______________
C H Lewis
Judge of Appeal
Appearances:
For
Appellant: R C Hiemstra SC
Instructed by
The
State Attorney Cape Town
The State Attorney Bloemfontein
For
Respondent: D L Van Der Merwe
Instructed by
Goussard
Attorneys George
Matsepes Bloemfontein
1
[1996] ZACC 20
;
1997 (1) SA 124
(CC). See also
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development Intervening (Women’s
Legal
Centre as amicus curiae)
[2001] ZACC 21
;
2001 (4) SA
491
(CC).
2
44 of 1957.
3
Paras 11 and 12. The section in issue there provided for a shortened
time period within which to sue, but the dicta are apposite
also to
the additional requirement of notice.
4
(153/ 2007)
[2008] ZASCA 34
(28 March
2008) 2008
(4) SA 312
(SCA).
5
Catharina Dauth & others v Minister of
Safety and Security & others
(per
Lacock J) (case 729/2007 Northern Cape High Court, handed down on 23
May 2008);
Shirley Marais v Minister
van Veiligheid en ‘n ander
(case
2727/2005 Free State High Court (per Van der Merwe R) (delivered on
24 October 2006); and
Schlebusch v
Mohokare Plaaslike Munisipalitiet
(per
Van Zyl R) (case 567/2005, delivered on 11 October 2007)
6
Per Theron J, Kruger J and Radebe AJ concurring:
case no 14939/05, handed down on 25 August 2008.
7
The Afrikaans text uses ‘kan’ instead
of ‘mag’.
8
Above, para 13
9
Above para 10.
10
Para 9.