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[2016] ZANCHC 92
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Reed v MEC for Economic Development Tourism and Environmental Affairs, Northern Cape and Another (893/2016) [2016] ZANCHC 92 (23 September 2016)
IN
THE
HIGH
COURT OF
SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 893/2016
Heard
on: 05/08/2016
Delivered
on: 23/09/2016
In
the
matter
between:
JOSEPH
REED
APPLICANT
And
MEC
FOR ECONOMIC DEVELOPMENT
1
ST
RESPONDENT
TOURISM
AND ENVIRONMENTAL AFFAIRS,
NORTHERN
CAPE
CHIEF
EXECUTIVE OFFICER
2
ND
RESPONDENT
CAPE
LIQUOR BOARD
JUDGMENT
MAMOSEBO
J
[1]
On 03 May 2016 the applicant, Mr Joseph Reed, applied for a
declaratory
order in the following terms:
(a)
That the applicant complied with the provisions of s 3(1) and 3(2) of
the Institution of Legal
Proceedings Against Certain Organs of State
Act, 40 of 2002 (the Act);
(b)
Alternatively, condonation for non-compliance with the provisions of
s 3(1) and 3(2) of the Act;
and
(c)
costs of suit.
The
first respondent
is the MEC for
Economic Development Tourism and
Environmental Affairs (the
MEC) and the second respondent is the Chief
Executive Officer, Cape
Liquor Board (the CEO). The respondents opposed the application.
[2]
On 30 May 2003 the High Court, Tlaletsi AJ, made the following order
in
Case No 26/2003:
"Na
aanhoor van Meneer Erasmus namens die applikant [Joseph Reed] en na
deurlees van die betrokke stukke:
Word gelas:
1.
Dat die besluit van die eerste respondent [the Liquor Board]
om applikant se aansoek om 'n spesiale dranklisensie (binneverbruik)
ten opsigte van 1ste Vloer, 2-8 Markplein, hoek van Markplein en
Jonesstraat, Kimberley te weier, tersyde gestel word.
2.
Dat die aansoek van applikant om 'n spesiale dranklisensie
(binneverbruik) ten opsigte van 1ste Vloer, 2-8 Markplein, hoek van
Markplein
en Jonesstraat, Kimberley, na respondent no.1 terugverwys
word wat dit de nova moet oorweeg en daaroor besluit.
3.
Dat elke party
sy eie koste betaal.
"
[3]
Section 3 of the Act stipulates:
"(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 proceeding(s)
-
(i)
without
such notice; or
(ii)
upon receipt
of a notice
which
does not comply
with
all the requirements
set out in ss (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
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 the
knowledge of the creditor.
(3)
for purposes
of ss (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 ins 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 ss
(2)(a), the creditor may apply to a
court having jurisdiction for
condonation of such failure.
"
(emphasis added)
[4]
From the above the applicant undoubtedly knew the identity of the
organ
of state and the facts giving rise to the debt. The applicant's
contention, however, is that a claim for R40 million damages against
the respondents is not a debt and that, therefore, prescription does
not apply to his claim. It was also argued by his counsel,
Mr Kammies
that prescription does not apply to a court order. The applicant
further contended that the Liquor Board is not an organ
of state as
envisaged in the Act and further questioned the authority of Mr
Kebaeng Timothy Makhale to depose to the answering
affidavit on
behalf of the respondents.
The Authority of Mr
Makhale
[5]
The applicant stated the following in his Replying Affidavit:
"The identity of the
author of the first and second respondents' answering affidavit is
unknown to me as I never had any previous
dealings with him and I am
unaware of his position with the second respondent.
"
This
contention is unclear as the deponent unambiguously stated under oath
that he is Mr Kebaeng Timothy Makhale, Chief Financial
Officer of
the Northern Cape Liquor
Board, and was duly authorised to depose to the affidavit. The
applicant should have provided a basis for
his contention. His
statement is inadequate to make out a case for lack of
locus
standi.
I therefore find that
this argument lacks merit and stands to be dismissed.
Are the respondents
organs of state?
[6]
The applicant makes the averment at para 12 of his founding
affidavit:
"During consultation
with my attorney and in line with the decision of
Nicor
IT
Consulting
(Pty)
Ltd
v
North
West
Housing
Corporation
2010
(3)
SA 90
(NWM),
I was advised that the F
1
and 2
nd
respondent do not qualify as organs of state as envisaged in the Act
but it would be safe to give notice of institution of legal
action
proceedings. Due notice was given by my attorneys, marked annexure
"JR2
".
I further
submit that the damages in this matter do not constitute a debt as
envisaged by the Act which will reflect from the quoted
case law
supra.
"
[7]
Section 1 of the Act defines an organ of state as:
"(a) any national
or provincial department;
(c) any functionary or
institution exercising a power or performing a function in terms of
the Constitution, or a provincial constitution
referred to in s 142
of the Constitution;
(g) any person for whose
debt an organ of state contemplated in paragraphs (a) to (f) is
liable."
See
Dirk Links v Member of the Executive Council, Department of
Health, Northern Cape Province
[2016]
ZACC 10
also reported as
2016 (5) BCLR 656
(CC);
2016 (4) SA 414
(CC);
Rehoboth Development CC
and Others
v
Sol Plaatje Municipality Case No 2147/2010 delivered (10.10.2014).
In my view, the MEC and
the Liquor Board are organs of State and were therefore entitled to
be given a notice as envisaged in s
3(a) of the Act.
[8]
"JR2" is not a notice but the
Nicor IT Consulting
judgment (supra) that was attached to the Founding Affidavit.
On 27 May 2016 the respondents issued a notice to the applicant in
terms of s 35(12) and (14) of the Act requesting the applicant to
produce the notice in terms of s 3(4) of Act 40 of 2002 referred
to
as "JR2" in para 12 of the Founding Affidavit dated 03 May
2016. It can be safely inferred that when this request
was made the
required notice was not yet issued or received by the respondents
because the said notice was filed with the Registrar
on 07 June 2016.
I have noted, however, that the notice was sent by Justin Pillay
Attorneys to the CEO of the Liquor Board by registered
post on 08
April 2014.
[9]
A simple calculation shows that from 31 March 2004 when the outcome
of
the unsuccessful application was confirmed to Theunissen Attorneys
to 08 April 2014, when the notice was dispatched by registered
mail,
a period of 10 years has lapsed. In addition, the respondents only
received the filed copy of the notice by 23 June 2016,
a further two
years later. The question is can it be declared, as sought by the
applicant in the relief claimed, that he has complied
with the
provisions of secs 3 (1) and (2) of Act 40 of 2002? The Act requires
the notice to be issued within the 6 months from
the date on which
the debt became due. In my view, the debt became due by 31 March
2004.
The
Condonation
issue
[10]
Section 3(4) (b) stipulates:
"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 prejudicedby
the
failure."
[11]
The applicant's submission is that the dispute arose in 2002 when he
applied for a liquor
licence which was declined by the MEC: Northern
Cape Liquor Board. His then legal representative, Mr Erasmus,
launched an application
within six months of the decision. He does
not say when he served the respondents with a notice or that he did
so within the six
months.
[12]
The applicant claims not to have received a copy of the Court order
nor had any sight thereof.
He does not elaborate on why he could not
obtain a copy of the order upon its issue or shortly thereafter
except to state that:
"the said order must have been removed
by either the second respondent [the Liquor Board] or their attorney
of record at the
time and the content
of the said order
was never communicated to me due to the fact that
my
attorney of record at the time
withdrew before the order
was issued.
" Remarkably, the applicant does not mention who
his attorney of record was who withdrew before the order was issued.
It was
incumbent upon him, or any interested party for that matter,
to obtain the order from the Registrar. It is a public document.
[13]
The applicant says that he realised that a third party was selling
liquor from the same
premises that he had applied to operate from. He
approached the office of the Registrar of the High Court and
subsequently filed
this application. He makes this averment at para
11 of the Founding Affidavit:
"As a result of the
non-compliance [by the MEC and the Liquor Board] with the court order
I suffered severe financial damages
which mean the debt that I am
trying to recover only arose recently. I want to add that only five
(5) months prior to the notice
to the 1
st
and 2
nd
respondent of intended legal proceedings, I received notice that the
licence on the premises for which I applied was issued to
a third
person in direct [disregard] of an existing court order. At all
relevant times I was awaiting the JS' and 2
nd
respondent
to comply with the court order.
"
[14]
On 07 April 2014 Mr Justin Pillay of Justin Pillay & Associates
addressed a letter
to the CEO of the Liquor Board under the subject
JOSEPH REED/YOURSELF: LIQUOR LICENSE: PUB NO NAME - CASE NUMBER:
26/03
the contents of which are quoted in full:
"14.1 We refer to
the abovementioned matter and confirm that we are acting on behalf of
Mr Joseph Reed.
14.2
It is our instructions
that during May
2002 Mr Reed [was] trading
as Pub No Name from 1
st
Floor, 228 Markplein, Corner of Markplein and Jones Street, Kimberley
on a temporary license.
14.3
He subsequently, during May 2002, applied to this
Board/or a permanent
liquor
license
in
respect
of
the
premises
described
in
paragraph
2 above,
which
application
was declined
by the
Board.
14.4
The Board's decision subsequently led to a civil matter
in the High
Court Kimberley under Case Number 26/03.
After hearing counsel
for
both applicants
and
respondents
in the said
matter,
the
court
reversed the
[decisionJ of the respondent (Liquor Board) ordering that the matter
should be referred back to the Liquor Board to
reconsider their
decision de nova.
14.5
Since the granting
of that court
[order]
up until today, the Board
has
failed to comply with the court order and instead issued a license to
a different
applicant
in respect
of the same premises.
14.6
During
the time that our client operated
from the premises
in dispute,
client
had
a
turnover
between
Rl00
000
and
R150
000
per
month
and
as
a
result
of
the
negligence
of
the
Board, suffering
a
severe loss
which resulted
in his complete bankruptcy.
14.7
We
submit
that the damage
incurred
by our
client
is
the
result of
your sole negligence.
14.8
We further submit that prescription does not run in
respect of a court order and client was at all stages adhering to the
court
order
by awaiting
your
reconsideration of his original
application.
14.9
Furthermore, client was defamed by yourself through
newspaper articles which articles also misled the public, indicating
that no
license will ever be issued in respect of the property in
dispute.
14.10
As a result [of your] negligence our client suffered
extensive damages in the amount of R40 million, which amount is
calculated
as follows:
14. 10.1
Loss of income
R15 million
14.10.2
Loss of property
R4 million
14.10.3
Legal
costs
R1 million
14.10.4
General
damages
R20 million
14.11
In the light of the above it is our instruction to
claim from you the amount of R40 million in damages as stipulated
above, which
amount is payable within thirty (30) days of delivery of
this notification."
[15]
Mr Makhale, the CFO, of the Liquor Board, deposed to the Answering
Affidavit on behalf
of the respondents. According to him the
applicant was issued with temporary liquor licences which were issued
by a Magistrate
in terms of s 28 of the Liquor Act, 27 of 1989,
(Liquor Act 27 of 1989 was amended by Act 60 of 1989, 40 of 1993, 105
of 1993 and
57 of 1995. It was later repealed by s 46 of Act 59 of
2003). He explained that a temporary licence could only be renewed to
a
maximum six times for a period not exceeding one month on each
occasion. The application for a permanent liquor licence by the
applicant was considered by the Liquor Board and pending the
decision, a hearing was conducted. The application was met with
objections
from the stakeholders or interested parties and was
unsuccessful.
[16]
Mr Makhale's assertion is correct. On 08 April 200 Mr Theunissen, an
attorney, addressed
a letter to the Liquor Board following up ·on
the unsuccessful application. He asked the Board to expatiate on the
phrase
"public interest"
which is "
egter
'n baie wye begrip en graag verneem
ans van u u
redes
ten opsigte van in watter
opsigte
dit nie in die
'public
interest' is nie
".
The applicant therefore
flatly contradicted his own attorney. It will be noted that Mr
Theunissen certainly received the Liquor
Board's report to the
applicant because the concept or phrase "public interest"
is used in para 5 of the Liquor Board's
report quoted immediately
below (para 17).
[17]
On 22 April 2004 the Northern Cape Liquor Board addressed its
response to Theunissen Attorneys
under the subject
"JOSEPH
REED/NORTHERN CAPE LIQUOR BOARD - REASONS FOR REFUSAL OF
APPLICATION".
The attorneys were informed that the
transcript of the proceedings would be furnished to them in due
course. They were informed
on 31 March 2004 that the applicant's
application was unsuccessful. At para 3 the letter reads:
"(3) In arriving at
its unanimous decision of not granting the application, the Liquor
Board took the following matters into
consideration:
3.1
There were objections raised by the business community, the
representatives of whom gave oral testimony before the Board and
were cross-examined by you [meaning Mr Theunissen].
The gist of the
objections by this sector of the community is to the effect that on a
previous occasion, your client operated a
liquor license similar to
the one applied for on a temporary basis.
Temporary licences, as
you are aware, are issued by the Magistrate without reference to the
Provincial Liquor Board. It is during
the course of this temporary
operation that the businesses in and around the area experienced the
following problems:
3.1.1
Patrons
urinating
in
public;
3.1.2
Vomiting
on
the
pavements;
3.1.3
Dirt
and
all
sorts
of
refuse
dumped
on
the
pavements
and
in
the
surrounding
streets;
3.1.4
Noise
emanating
from
loud
music
played
from
the
liquor
outlet;
and
3.1.5
Patrons would come with their braai stands and braai
meat on
pavements.
It was a further
contention of the business community that as a result of all these
factors, business houses in the area were left
with filthy
surroundings and, their clients and customers were no longer
attracted to the business district.
The effect again of all
these circumstances would be very adverse to the well-being of the
city of Kimberley from a tourism point
of view as well. The overall
view of the business community appears from the oral evidence of
Hendrick Lauw and Mrs Parsons, and
is also documented in the
letter/fax dated 25 March 2004 and hereto attached marked "AA".
A copy of this letter was faxed
to you on 29 March 2004 before you
appeared before the Liquor Board on behalf of your client.
3.2
The City of Kimberley falls under the jurisdiction of
Sol-Plaatje Municipality. The Liquor Board deemed it fit to act in
terms of
section 12
of the Liquor Act, 1989 (29 of
1989)( the Act) and caused officials of that
council to be
present at the meeting where the application was heard. The said
council in the person of Ms Marlene Viljoen, attended
the meeting. Ms
Viljoen is the CED Manager of the City council, and in her capacity
she had received numerous complaints during
the existence and tenure
of your client's temporary licence. Needless to say, these complaints
are also well documented in a letter
dated 25 March 2004 hereto
attached and marked "BB". A copy of this letter was also
faxed to you before the meeting where
your client's application was
heard by the liquor board. Ms Viljoen also gave oral evidence and was
cross-examined at length by
you.
3.3
The
police
were
also
invited
to
the
meeting
vide
s
12
of
the
Act
in
order to enlighten
the Board on the issue of crime in and around the area in question.
The document hereto attached and marked "CC"
was handed in
at the meeting by Inspector Witbooi of the Kimberley Drank and
Vuurwapen Unit without you objecting to the contents
thereof
4.
The premises from which your client wishes to carry on trade
for which he has applied are situated in the central business
district
of the city of Kimberley. It was a matter of common cause
during the course of the proceedings that the premises do not belong
to him and that at the time of the hearing of the application, your
client did not hold any title to
the said premises.
In reply to a question by
the Deputy Chairperson of the Liquor Board regarding your client's
right to occupation of the premises,
your response was that your
client was about to enter into an agreement of lease of the premises
with the owner of the premises.
When the Board finally
took its decision not to grant the licence, this matter had not been
canvassed to the satisfaction of the
Board that the applicant/your
client has the right to occupy the premises.
5.
The objections and concerns raised by the business community,
the city council and the police
are such that in the
mind
of the Liquor Board
it could not be
decided that the granting of the
Licence
would
be in the
public interest.
On the
contrary,
there
is evidence
before
the
Board, which indicates that it would be to
the inconvenience of the public and therefore
not their
interest if this application
is granted.
"
[18]
Mr Makhale contended, correctly, that based on the unsuccessful
application, the applicant
was not a licence holder and could not
have suffered damages through a liquor licence he never possessed. He
maintained that the
applicant's legal representatives had a duty to
communicate the outcome to him. I did not discover any termination of
Mr Theunissen's
mandate from the papers; neither did the applicant
make such intimation. Mr Theunissen was allegedly removed from the
roll to practice
as an attorney at some stage. The onus rested on the
applicant to notify the respondents of the terminated mandate or him
being
struck from the roll and to provide a new address for the
service of court processes. This was not done.
[19]
It is also evident from the papers that the applicant was legally
represented by Mr Theunissen
who entered into correspondence with the
Liquor Board on his behalf who even attended the enquiry where he
cross-examined all the
people who testified before the Board. Mr
Theunissen was also furnished with the transcript of what transpired.
The applicant therefore
lied. He is not even a good liar.
Has the debt been
extinguished by prescription?
[20]
R40 million is an astronomical amount of money. It is
incomprehensible that the applicant
argued that a claim for R40
million in damages is not a debt as contemplated in s 3 of the Act.
The question is when did it become
due and payable? The applicant
claims that the cause of action arose in May 2002 when the Board
declined to grant him a permanent
liquor licence, which makes his
task even more onerous. On 12 March 2004 Adv TI Rakgoale, in his
capacity as the Chairperson of
the Board, wrote a letter to Mr CJ
Theunissen, the applicant's attorney and agent, extending an
invitation to him to attend the
enquiry to consider the application
for a liquor licence in respect of: Pub No Name: Mr Joseph Reed. It
was stated in that letter
that the Board wished to determine if
granting the licence would be in the interests of the public.
[21]
As pointed out earlier all processes were served on Mr Theunissen or
correspondence directed
to him. Of relevance is Rule 4 (1)(aA) of the
Uniform Rules of Court in respect of which the remarks by Flemming
DJP in
Eskom
v
Soweto City Council
1992
(2) SA 703
(WLD) at 705H-I are apposite:
"As to when and how
the attorney's authority should be proved, the Rule maker made a
policy decision. Perhaps because
the risk is minimal that an attorney
will act for a person without authority to do so, proof is dispensed
with except only if the
other party challenges the authority. See
Rule 7(1). Courts should honour that approach. Properly applied, that
should lead to
elimination of the many pages of resolutions,
delegations and substitutions still attached to applications by some
litigants, especially
certain financial institutions.
"
[22]
The second requirement is that good cause for the delay has to be
shown. Reher JA in
Madinda
v
Minister of
Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at 317B - G made
the following remarks:
"
'Good cause for the delay' is not simply a mechanical matter
of cause and effect. The court must decide whether the applicant has
produced acceptable reasons for nullifying in whole, or at least
substantially, any culpability on his or her part which attaches
to
the delay in serving the notice timeously. Strong merits may mitigate
fault; no merits may render mitigation pointless. There
are two main
elements at play in s 4(b), viz the subject's right to have the
merits of his case tried by a court of law and the
right of an organ
of state not to be unduly prejudiced by delay beyond the statutorily
prescribed limit for the giving of a notice.
Subparagraph (iii) calls
for the court to be satisfied as to the latter. Logically,
subparagraph (ii) is directed, at least in
part, to whether the
subject should be denied a trial on the merits. If it were not so,
consideration of prospects of success could
be entirely excluded from
the equation on the ground that failure to satisfy the court of the
existence of good cause precluded
the court from exercising its
discretion to condone. That would require an unbalanced approach to
the two elements and could hardly
favour the interests of justice.
Moreover, what can be achieved by putting the court to the task of
exercising a discretion to
condone if there is no prospect of
success? In addition, that the merits are shown to be strong or weak
may colour an applicant's
explanation for conduct which bears on the
delay: an applicant with an overwhelming case is hardly likely to be
careless in pursuing
his or her interest, while one with little hope
of success can easily be understood to drag his or her heels. As I
interpret the
requirement of good cause for the delay, the prospects
of success are a relevant consideration.
"
[23]
The learned judge added at para 14:
"[14] One other
factor in connection with 'good cause' ins 3(4)(b)(ii) is this: it is
linked to the failure to act timeously.
Therefore subsequent delay by
the applicant, for example in bringing his application for
condonation, will ordinarily not fall
within its terms. Whether a
proper explanation is furnished for delays that did not contribute to
the failure is part of the exercise
of the discretion to condone in
terms of s 3(4), but it is not, in this statutory context, an element
of 'good cause'.
"
[24]
It is apparent that the Board invited representation from the
business community, the local
municipality, the South African Police
Services as well as the applicant's legal representative to
participate in reconsidering
the application as the Court has
ordered. It is therefore misleading for the applicant to state that:
"It is only recently that I have realised that the 2
nd
respondent must have issued a liquor licence on the same premises
that I have applied for when I noticed a different person operating
from the same premises
and that part of that business
was the sale of liquor.
" The applicant does not specify
when exactly is "recently". He further states that on an
unspecified date he approached
the Registrar of the High Court to
establish whether there was any other order under the previous case
number.
[25]
The outcome of the unsuccessful application was communicated to the
applicant's attorney
by 31 March 2004 he waited until 03 May 2016
when he filed the Notice of Motion, 12 years later. This was not the
first available
opportunity for him to activate the matter.
Reasonable time in my view, taking into account all the
circumstances, would have been
about three months later. In any
event, the unexplained period of 12 years is an eternity. I am also
of the view that the applicant
does not have any, let alone
reasonable, prospects of success on the merits. The applicant's
explanation is flimsy to the point
of being laughable.
The Prescription
Period
[26]
The Court may grant condonation for failure to serve an organ of
state with a notice
if the court is satisfied
that: (i) the
debt has not been extinguished by prescription. See s 3(4)(b) of the
Act. The applicant is incorrect to assume that
his claim is not
amenable to prescription.
Sec 12
of the
Prescription Act 68 of 1969
stipulates:
"(1)
Subject to the provisions of subsections (2), (3), and (4),
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.
"
[27]
In
Links v MEC for Health, Northern Cape
[2016] ZACC
10
;
2016 (5) BCLR 656
(CC);
2016 (4) SA 414
(CC) Zondo J writing for
the unanimous court remarked as follows at para 26:
"The provisions of
section 12
seek to strike a fair balance between, on the one hand,
the need for a cut-off point beyond which a person who has a claim to
pursue
against another may not do so after the lapse of a certain
period of time if he or she has failed to act diligently and on the
other the need to ensure fairness in those cases in which a rigid
application of prescription legislation would result in injustice.
As
already stated, in interpreting
section 12(3)
the injunction in
section 39(2) of the Constitution must be borne in mind. In this
matter the focus is on the right entrenched
in section 34 of the
Constitution.
"
[28]
The question is when did the applicant gather knowledge or become
aware of the facts from which
the debt arose? It is clear from the
letter addressed to Theunissen Attorneys dated 22 April 2004 that Mr
Theunissen was informed
on 31 March 2004 that the applicant's
application for the licence was unsuccessful. That Mr Theunissen was
struck from the roll
of practicing attorneys should have been
conveyed to
the
Liquor Board by the applicant and should have informed the Board
where to direct his processes or communications to. To sleep
for 12
years
and
then to blame a non-existent attorney is fallacious. To make matters
worse is that Mr Theunissen' s statement
was not obtained
for his
version of the events. If he
refused to depose to an affidavit the applicant must then have said
so. In
Salojee & Another v Minister of Community
Development
1965 (2)
SA 135
(A)
140H- 141C Steyn CJ said:
"I should point out,
however, that it has not at any time been held that condonation will
not in any circumstances be withheld
if the blame lies with his
attorney. There is a limit beyond which a litigant cannot escape the
results of his attorney's lack
of diligence or the insufficiency of
the explanation tendered. To hold otherwise might have a disastrous
effect upon the observance
of the Rules of this Court. Considerations
ad misericordiam should not be allowed to become an invitation to
laxity. In fact this
Court has lately been burdened with an undue
increasing number of applications for condonation in which the
failure to comply with
the Rules of this Court was due to neglect on
the part of the attorney. The attorney, after all, is the
representative whom the
litigant has chosen for himself, and there is
little reason why, in regard to condonation of a failure to comply
with a Rule of
Court, the litigant should be absolved from the normal
consequences of such a relationship, no matter what the circumstances
of
the failure are.
"
[29]
I could not discern any communication from the papers that Mr
Theunissen was not mandated to receive any communication or processes
on behalf of the applicant and also to participate at the enquiries
conducted. In truth I hold Mr Theunissen blameless because
he seems
to have discharged his mandate diligently.
[30]
Zondo J said the following in the
Links v MEC for
Health, Northern Cape
(supra) at para 30:
"The first issue is
what the facts are from which a debt arises. Obviously, these are
facts that are material to the debt.
Counsel for the respondent
submitted that the ordinary meaning of the phrase "debt is due"
is that a debt is "owing
and already payable.
"
In support of this submission he referred to Lagerway
[Lagerway v Rich and Others
1973 (4) SA 340
(T) at 345]. He also
referred to Drennan [Drennan Maud & Partners v Town Board of the
Township of Pennington
[1998} ZASCA 29
;
1998 (3) SA 200
(SCA) at 212
G and I] where Harms JA said:
'In short, the word
'debt' does not refer to 'cause of action', but more generally to the
'claim
'...
In deciding
whether a 'debt' has become prescribed, one has to identify the
'debt', or, put differently, what the 'claim
'
was in the broad sense of the meaning of the word.
'"
[31]
Having regard to all the factors discussed above I am
satisfied that the application had no substance on the merit and was
bad in
law and must fail. The applicant must incur the wasted costs.
[32]
In the result the following order is made:
1.
The application for condonation for the failure to
comply with section 3 of the Institution of Legal Proceedings against
certain
Organs of State Act, 40 of 2002 is refused.
2.
The
application
is
dismissed
with costs.
MAMOSEBOJ
NORTHERN
CAPE DIVISION
For
the applicants:
Adv EJP Kammies
Instructed
by:
Thomas Kouter Attorneys
For
the 1
st
& 2
nd
respondents:
Adv SE Motloung
Instructed
by:
Office of the State Attorney