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[2016] ZANCHC 93
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Reed v MEC for Economic Development Tourism and Environmental Affairs, Northern Cape and Another (893/2016) [2016] ZANCHC 93 (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:
Wordgelas:
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.l 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
1
st
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 ins 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 prejudiced by 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 1
st
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 for 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
[decision] 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 R100 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 RI 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 CBD 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.
MAMOSEBO
J
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