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[2016] ZAKZDHC 40
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Perumal v Ethekwini Municipality (7843/2009) [2016] ZAKZDHC 40 (2 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION,
DURBAN
CASE
NO: 7843/2009
In
the matter between:
RAVI
PERUMAL
PLAINTIFF
and
ETHEKWINI
MUNICIPALITY
DEFENDANT
Order
:
a.
The
question of law is resolved in favour of the defendant.
b.
The
plaintiff’s letter dated 10 June 2008 does not constitute
compliance with section 3 of the Institution of Legal Proceedings
against certain Organs of State Act 40 of 2002.
c.
Plaintiff
is liable for the costs of the hearing on 23 August 2016.
JUDGMENT
CHETTY,
J:
1.
This
matter came before me as a special case in terms of Uniform Rule 33,
where the following was stated to be common cause:
a.
An
incident involving the plaintiff, which forms the subject matter of
this claim, occurred on 28 May 2008.
b.
The
defendant is an ‘organ of state’ as defined in the
Institution of Legal Proceedings against certain Organs of State
Act
40 of 2002 (‘the Act’).
c.
The
plaintiff’s attorney sent a letter dated 10 June 2008 to the
defendant, who received it on 13 June 2008.
d.
The
defendant responded to the letter on 29 July 2008.
e.
It is
not disputed that the letter from the plaintiff’s attorney
referred to in (c) above, was received within six (6) months
of the
incident in terms of section 3(2)(a) of the Act.
f.
The
plaintiff’s claim has not been extinguished by prescription.
2.
A
dispute on a question of law which has arisen is whether the letter
addressed by the plaintiff’s attorney dated 10 June
2008 to the
defendant, constitutes compliance with section 3 of the Act.
3.
It is
pertinent to set out the provisions of s 3 of the Act, as the
plaintiff’s letter referred to above must be interpreted
against the applicable legislative provisions in order to determine
whether there has been compliance with the statute for the
institution of an action against an organ of state.
4.
Section
3 of the Act provides that:
‘
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.’
(my
underlining).
5.
Following
the incident on 28 May 2008 in which the plaintiff sustained
injuries, he consulted with his attorney. The letter written
by the
attorney, referred to as annexure ‘A’ in the stated case,
is critical to the determination of the matter. The
letter from the
plaintiff’s attorney, dated 10 June 2008, is addressed to Mr. T
Arbuckle at the Ethekwini Municipality.
It reads as follows:
‘
Sir
RE : RAVI PERUMAL
We act for and on behalf of our
client, Mr R Perumal.
Our instructions are that our client
was injured in his eye on 28 May 2008 due to the negligence of
employees of the Ethekwini Municipality.
Attached hereto is an
affidavit of our client setting out how the same injury was
sustained.
Further be advised that our client has
now been referred to an ophthalmic surgeon for further treatment, due
to the fact that he
has lost vision in the said eye.
Kindly inform us as to whether your
offices would be prepared to cover his medical costs in respect
thereof, as a matter of urgency.
We await your response hereto.’
6.
In
reply, a letter was received from the defendant’s insurance
department, signed by the Deputy City Manager and addressed
to the
physical address of the plaintiff. Nothing in my view turns on the
fact that the letter was not addressed to the plaintiff’s
attorney, and no prejudice appears to have resulted therefrom. The
letter of the defendant reads as follows:
‘
I
am in receipt of your letter dated 11 June 2008 and advise as
follows. The Ethekwini Municipality cannot accept liability
for
any damages caused, as no negligence is attributable to them or any
of their employees in this regard at the time of the incident.
The incident occurred on
26 May at the Snake Park. After consultation with the client Rashida
from Shireen Amod (sic) office it
was not reported immediately to the
Department concerned and it was only brought to our attention 4 days
later. Under these circumstances,
the Department cannot accept
liability as no negligence is attributable to them.
Any inconvenience is
sincerely regretted.
Your faithfully
Deputy City Manager
(Treasury)’
7.
The
contention of the plaintiff, as set out in the special case, is that
the letter addressed by the plaintiff’s attorney
complies with
the requirements set out in s 3 of the Act in that it informed the
defendant of the plaintiff’s claim, allowing
the defendant an
opportunity to investigate the circumstances of the incident and to
formulate an opinion as to whether it wished
to contest the claim.
The results of the investigation would define the nature of the
response from the organ of state.
As authority for this
proposition, counsel referred to the decision in
Avex
Air (Pty) Ltd v Borough of Vryheid
1973 (1) SA 617
(A) where Botha JA made the following observation at
621H-622A:
‘
The
object of sec. 254 (2) is clear. It is to ensure that the local
authority concerned is timeously informed of the threat of legal
proceedings contemplated against it, and of sufficient particulars of
its alleged act or omission to enable it to investigate the
matter
and to consider its position in regard to the claim to be made before
becoming involved in the costs of legal proceedings.
(See
Pakco
(Pty.) Ltd
.
v
Verulam
Town Board and Others, supra
at p. 634; and cf.
Administrator,
Transvaal
,
v
Husband,
supra
at p. 394; and
Minister
of Defence
v. Carlson, supra at p. 235). The achievement or otherwise in
any particular case of the object of sec. 254 (2) is clearly
of
importance in deciding whether there has been substantial compliance
with the requirements of sec. 254 (2). (Cf.
Maharaj
and Others v Rampersad
,
1964
(4) SA 638
(AD)
at
p. 646).’
8.
Mr
De
Beer SC
,
who appeared on behalf of the plaintiff, submitted that in
determining whether the letter from the plaintiff’s attorney
complied with the requirements of s 3, I should also have regard to
the manner and content of the response from the defendant.
In this
regard, counsel submitted that there cannot be any doubt that
following the plaintiff’s attorney’s letter to
the
defendant, the incident was investigated. As a result of those
investigations the defendant indicated that it was unable to
accept
liability for “
any
damages caused
”.
It follows, as I understood counsel’s argument, that the letter
of 10 June 2008 addressed to the defendant
was properly interpreted
by the recipient as a demand for payment, and after investigation,
the defendant decided to refute liability.
9.
Accordingly,
the plaintiff submits that the purpose of the notice envisaged in s 3
of the Act had been achieved. It was further
contended that the
defendant has suffered no prejudice (and none has been alluded to) as
a result of any purported deficiency in
the letter of 10 June 2008.
Alternatively, even to the extent that it may be found that there was
no strict compliance with
the legislation (which is denied), it was
submitted that there has been substantial compliance with the
legislation. In
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA) Brand JA at para 22 pointed out that
“…
it
is clear from the authorities that even where the formalities
required by statute are peremptory it is not every deviation from
the
literal prescription that is fatal. Even in that event, the question
remains whether, in spite of the defects, the object of
the statutory
provision had been achieved (see eg
Nkisimane
and others v Santam Insurance Co Ltd
1978
(2) SA 430
(A)
433H-434B;
Weenen
Transitional Local Council v Van Dyk
2002
(4) SA 653
(SCA)
para 13).”
10.
While
the
Unlawful
Occupiers
case concerned compliance with section 4(2) of PIE, the underlying
enquiry, whether one is dealing with an eviction or in a damages
claim such as the present, is whether the party receiving the notice
is aware of the case it has to meet. At a factual level,
the
question is whether the letter addressed to the municipality by the
plaintiff’s attorney achieved the purpose set out
in the Legal
Proceedings against Certain Organs of State Act 40 of 2002. For
this reason it was submitted that the point
of law raised by the
defendant amounts to a technical defence which has no practical
effect on the parties. In light thereof,
Mr
de
Beer
submitted that the point is bad in law and must fail, attendant upon
the defendant being liable for the plaintiff’s costs
of the
stated case, including that of senior counsel.
11.
Our
courts, particularly in the era of our constitutional democracy have
repeatedly cautioned against promoting slavish adherence
to form
above substance. Although not referred to in argument by either
counsel, the views expressed by Petse ADJP in
OR
Tambo District Municipality v Wild Coast Guards CC
[
2010]
JOL 26486
(E) in the context of an appeal, where a special plea was
raised based on non-compliance with s 3(1) of the Act, throws light
on
the approach to be taken in adjudicating such applications:
‘
[17]
In the alternative Mr
Mbenenge
argued that even if we were to reject his principal submission and
have regard to both letters they still, even when read together,
failed to pass muster as a valid written notice within the
contemplation of section 3(1) of the Act in conformity with what has,
in a long line of judicial pronouncements, been held to constitute
substantial compliance with statutory prescripts of the kind
now
under consideration in this appeal.
[18] I
must confess that I have great difficulty in appreciating the logic
and rationale in the approach inherent in
Mr
Mbenenge's
principal submission on this score for two reasons. First it is
my judgment that this argument entirely ignores the rationale
for the
existence of statutory prescripts such as section 3(1) of the Act and
the purpose of such legislation as articulated in
the judicial
authorities cited in the main judgment. Secondly, and this is equally
a telling factor in my view, such an approach
is not only overly
technical but also has the effect of putting form above substance
which courts ordinarily eschew. Thirdly and
even of great
significance is that when once regard is had to the response letter
from ORTDM the view that the written notice addressed
to ORTDM on the
behest of WCG adequately served its purpose…..
[19] Thus
the argument heavily relied upon by Mr
Mbenenge
in his oral
submissions before us cannot be sustained. Suffice it to mention that
were we to uphold this argument we would in effect
be adopting an
overly technical approach and thus not taking due cognisance of the
reality of the situation which was that the
appellant's municipal
manager clearly had no illusion about what the letter addressed to
ORTDM by respondent's erstwhile attorney
sought to convey to the
appellant. Were we to hold otherwise we would thereby be doing
something totally at variance with clear
and binding authority as
proclaimed in a plethora of judgments of our courts approved and
reaffirmed in
Moise's
case referred to in the main judgment.
[20] For
the sake of completeness I should perhaps add that Mr
Mbenenge
might well have had a valid point if for example the letter
addressed to ORTDM had elicited no response and when faced with the
present legal proceedings ORTDM were to say: we received the letter
of "demand" but did not have the slightest inkling
of what
was required of us. But this is not what the argument advanced on
behalf of ORTDM postulates. Quite on the contrary what
the contention
advanced on behalf of ORTDM boils down to is this: whilst your
written notice might have been couched in the vaguest
of terms and
despite its shortcomings we were left in no doubt of what precisely
was required of us as we knew what you sought
to achieve and
pertinently responded to your written notice. To now seek to persuade
us to ignore this telling factor ie the municipal
manager of ORTDM
knew what WCG sought to convey would, in my view, be irrational and
untenable because to uphold Mr
Mbenenge's
proposition on this
score in the circumstances of this case would be adopting a dogmatic
approach whereas all judicial authorities
on this score are decidedly
against such an approach. This is particularly all more the reason
when, as in this case, the purpose
for which the written notice is
required which is to ensure that an organ of the state "receives
warning of the contemplated
action and is given such information as
would enable it to ascertain the facts, consider them and decide
whether to avoid litigation
or not" is served. In the context of
this case the contention that the written notice in issue though
bereft of sufficient
detail and inelegantly drafted or even misguided
nevertheless achieved, in my view, its purpose brooks of no argument
to the contrary.
[21]
………..the common thread running through all the
judgments referred to and discussed by my colleague, as
I understand
them, is that in each case the question of whether there has been
substantial compliance with the statutory prescripts
of the kind now
under consideration in
hoc
casu
is not to be answered in the abstract but with specific reference to
the peculiar circumstances of each case. ……….I
consider it apposite to refer to the judgment in
Groepe
v Minister of Police & others
1979 (4) SA 182
(E) at 184 H where the following is stated:
“
The
purpose for which this notice is required to be given is of
importance. That purpose is to ensure that the State, or the
person to be sued, receives warning of the contemplated action and is
given sufficient information so as to enable it or him to
ascertain
the facts and consider them. The section is enacted for the benefit
of the recipient of the notice, and
that
purpose must be served
.”
(My emphasis)’
12.
In
general therefore, courts should direct their attention to whether
the object of the notice has been achieved. See for example
Theart
and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd
2010
(3) SA 327
(SCA),
which was concerned with the notices issued in terms of s 4(2) of the
Prevention of Illegal Eviction Act 19 of 1998.
Put differently
and in the context of the present matter, the enquiry must be whether
the letter addressed by the plaintiff’s
attorney meets the
object and purport of the legislation. See also
Arendsnes
Sweefspoor CC v Botha
2013 (5) SA 399
(SCA).
13.
Mr
Buthelezi
,
who appeared on behalf of the defendant, while accepting that there
was no prejudice occasioned to the defendant as a result of
the
contested letter of 10 June 2008, nonetheless submitted that the
plaintiff had failed to comply with the legislative requirements
embodied in s 3 of the Act. His argument was essentially that
the letter makes no mention of a
demand
on
the defendant, and more importantly, gives no indication that in the
event of the defendant failing to pay, that the letter constituted
the plaintiff’s notice of its intention to institute legal
proceedings against the defendant. At best, according to Mr
Buthelezi
,
the letter can be construed as an ‘indulgence’ sought on
behalf of the plaintiff for payment of his medical expenses.
In
this regard, the letter clearly states the following:
‘
Kindly
inform us as to whether your offices would be prepared to cover his
medical costs in respect thereof.’
14.
It
was further submitted that it cannot be argued that the letter
constitutes a demand for payment of medical expenses, either in
part
or in full, from the defendant. The tenor of the letter, it was
submitted, was more in the vein of a respectful request for
assistance in light of the injury sustained by the plaintiff. Counsel
for the defendant pinned his case on the rationale in
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) where the Court was dealing with the
circumstances when an application for condonation will be granted
where there has been
a failure to comply with s 3 of the Act. Of
particular importance concerning the issue before me is the following
statement at
para [9] where the Court held:
‘
The section
expressly refers to notice of intended legal proceedings, and is
peremptory: no legal proceedings
may
be instituted against an organ of State
unless
the
creditor has given notice in writing of his or her intention to
sue,…’.
15.
The
defendant contends that the plaintiff failed to comply with s 3(1)(a)
of the Act. That section requires a claimant to give ‘
his
or her or its intention to institute the legal proceedings
’.
It was submitted by the plaintiff that in order to determine whether
the injunction in s 3(1)(a) has been met, one should
not only have
regard to the contents of the plaintiff’s letter, but also the
defendant’s reply thereof, which provides
the clearest
indication as to how the letter was interpreted. I am not
persuaded that that is a correct premise to interpret
whether there
has been compliance with s 3(1). The section does not require an
overall conspectus of the facts to ascertain whether
there has been
compliance. It places the necessity for the issuance of a
demand squarely on the ‘
creditor
’.
That is an objective assessment, based on a ‘
notice
in writing
’.
As indicated above, there is nothing in the letter of 10 June 2008
which forewarns the defendant that should it not pay
towards the
plaintiff’s medical expenses, legal proceedings will be
instituted against it.
16.
While
the special plea raised by the defendant may be construed as being
overly technical, the point which cannot be overlooked
is that a
notice in terms of s 3 must comply with the requirements of the
legislation. It is evident, in my view, that the
plaintiff’s
letter of 10 June 2008 cannot, even of the most benevolent
interpretations, be construed as a notice to institute
legal
proceedings. It is simply silent on this score. I am
bound by the decision of the SCA in
De
Witt
which
states that the language in the section is peremptory.
17.
Mr
Buthelezi
submitted that the defendant’s point of law raised in its plea
should be upheld with costs. The consequence thereof
is not
necessarily the end of the road for the plaintiff, especially as the
stated case records that the plaintiff’s claim
has not been
extinguished by prescription. As established in
De
Witt
supra,
where an organ of state contends that either no notice or a defective
notice was issued, the creditor may apply for condonation
in terms of
s 3. The SCA stated the following at para 10:
‘…
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 ss (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.’
18.
The
ambit of this application is not to consider the merits or otherwise
of an application for condonation. That is a matter
for the
plaintiff to pursue in the event of the special plea being upheld.
If such an application were to be brought, a Court
would no doubt
that into account that even if a revised or new notice in terms of s
3 were to be issued, it would make no material
difference to the
attitude of the defendant to the claim – it would still deny
liability and contest the claim.
19.
The
other point alluded to, but which has become unnecessary for me to
determine, is the sufficiency of the notice to the defendant,
even if
I were to consider that it (the letter of 10 June 2008) complied with
s 3(1) of the Act. Apart from the point that the
letter did not
constitute a demand or notice to institute legal proceedings, was the
letter was circumscribed only to requesting
the payment of medical
costs?. Although the letter was only directed at the defendant
paying the medical costs, it would
appear that the letter was more
widely construed by the defendant who responded that it rejected
liability for “
any
damages caused
”.
It is common cause that the summons embraced a claim for both medical
expenses as well as general damages despite
the letter of 10 June
2008 referring only to medical expenses.
20.
In
light of the submissions before me and the case authority I have
referred to, I accordingly make the following order:
a.
The
question of law is resolved in favour of the defendant.
b.
The
plaintiff’s letter of 10 June 2008 does not constitute
compliance with section 3 of the Institution of Legal Proceedings
against certain Organs of State Act 40 of 2002.
c.
Plaintiff
is liable for the costs associated with the hearing on 23 August
2016.
_________
CHETTY
J
APPEARANCES
For
the Applicant:
Adv H A de Deer SC
Instructed by
Shireen Amod & Co
Ref: (Mrs
Amod/RT/P52)
For
the Respondent:
Adv B J Buthelezi
Instructed by Linda
Mazibuko & Associates
Ref: (Mr
Mchunu\\llg\EM177.FN)
Date
of hearing:
23 August 2016
Date
of judgment:
2 November 2016