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[2016] ZAGPPHC 1062
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National Commissioner South Africa Police Services and Another v Tsogile Foundation Security Services & Training (Pty) Ltd In re. Tsogile Foundation Security Services & Training (Pty) Ltd v National Commissioner South African Police Services and Another (59500/2010) [2016] ZAGPPHC 1062 (21 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
Reportable:
YES
Of
interest to other judges: YES
Revised.
21
December 2016
CASE
NO: 59500/2010
In the matter between:
THE
NATIONAL COMMISSIONER
SOUTH
AFRICAN POLICE
SERVICES
1
st
Applicant
PROVINCIAL
COMMISSIONER
SOUTH
AFRICAN POLICE
SERVICES
2
nd
Applicant
and
TSOGILE
FOUNDATION SECURITY
SERVICES
& TRAINING (PTY)
LTD
Respondent
In
re:
TSOGILE
FOUNDATION SECURITY
SERVICES
& TRAINING (PTY)
LTD
Respondent
and
THE
NATIONAL COMMISSIONER
SOUTH
AFRICAN POLICE
SERVICES
First
Defendant
PROVINCIAL
COMMISSIONER
SOUTH
AFRICAN POLICE
SERVICES
Second
Defendant
JUDGMENT
Jansen J
[1] I
refer to the parties in this application in the manner in which they
are referred to in the pleadings.
[2]
This application for leave to appeal relates specifically to the
interpretation to be placed upon, and the manner in which the
Institution of Legal Proceedings against Organs of State Act 40 of
2002 ("
The Act
"), should be interpreted.
[3] The
facts of this matter are unique in that the alleged non-compliance
with the Act was never raised by the defendants when
an urgent
application was launched against them in 2010; when the matter was
referred to evidence; when, on 13 August 2013, Tuchten
J rescinded
the order referring the matter to evidence and referred the matter to
trial and when one of the special pleas was argued
(namely
non-joinder of the Police). (In fact, the special plea relating to
non-compliance with the Act was only introduced in an
amended plea
after a declaration had been filed as ordered by Tuchten J.)
[4]
When Tuchten J on 13 August 2013 referred the matter to trial and lay
down the procedure to be followed, the defendants were
similarly mum
about the provisions of the Act which prescribes a certain procedure
to be followed when instituting any legal proceedings.
When
questioned about this omission, neither the plaintiff nor the
defendants' counsel were in a position to contribute to the
debate.
It was put to them that a court order, which had never been sought to
be rescinded, and which prescribes a procedure contrary
to the
provisions of the Act, for the institution of court proceedings,
bound the court hearing this matter. Once again, the parties
were at
a loss to state what a court should do when faced with such a
scenario.
[5] It
was as a result of these facts that the court held that the
defendants could no longer rely on a special plea (pertaining
to
non-compliance with the Act) given the defendants' failure to rely on
this point for a period of more than three and a half
years. The
court held that the special plea had become academic.
[6] The
further grounds relied upon by the court for not upholding the
special plea of non-compliance with the Act, was merely set
out for
the sake of completeness, as stated in the judgment. ("Lest I
err in my analysis above, I turn to the merits of the
special plea.")
Requirements
for leave to appeal to be granted
[7] An
applicant for leave to appeal, as set out by counsel for the
defendants, must demonstrate that: -
·
The appeal
"would"
have a reasonable prospect of success; or
·
There is another compelling
reason why the appeal should be heard.
(Section 17(1)(a)
of the
Superior Courts Act 10 of 2013
)
·
The decision sought to be
appealed against is not one that would have no practical effect or
result.
(Section 16(2)(a)
of the
Superior Courts Act 10 of 2013
)
Section
3 of the Act
[8] The
plaintiff argued as follows: -
In terms of s.3 of the
Act
"no legal proceedings"
may be
instituted against an organ of state if it is for the recovery of a
"debt"
unless
certain things are in place.
·
First,
absent
consent given by the organ of state
.
the creditor must have given the organ of state
"notice
in writing".(emphasis added)
·
Secondly, the notice must contain
certain information:
○
It must record the intention of the
creditor
"to institute the legal
proceedings
in question
".
○
It must briefly set out the facts giving
rise to the debt and such particulars of the debt as are within the
knowledge of the creditor.
·
Thirdly, the notice must have been
given within 6 months from the date on which the debt became due.
[9] It
is inaccurate to state, as counsel for the defendants do, that the
court held against the defendants on two bases. Tue court
held
against the defendants on three bases. Tue main ground was that the
issue appealed against had become academic. It only referred
to the
two further issues mentioned in the judgment regarding the merits of
the special plea "lest it err(ed)" in holding
that the
issue appealed against had become academic. (Hence, the main reason
why the court held against the plaintiff was because
the special plea
had become academic.)
[10] In
argument, during the hearing of the application for leave to appeal,
Mr Hulley SC fairly conceded that at the stage when
the special plea
regarding non compliance with the Act was heard by this court,
all parties, particularly the defendants,
knew which case it had to
meet (save to state that the Particulars of Claim were expiable). He
thus fairly conceded, on behalf
of the defendants, that the appeal
had become academic.
[11]
For this reason, the court asked the parties to file heads of
argument based on
section 17(1)
of the
Superior Courts Act 10 of 2013
which clearly stipulates that when the issue sought to be appealed
against will not have any practical effect or result, then leave
to
appeal should not be granted. The parties were given the opportunity,
as prescribed by section 16 of the Act, to make submissions
to the
Courts on this points
:
in terms of
section 16(2)(b)
of the
Superior Courts Act which
reads as follows
[1]
-
(2) (a) (i) When at the hearing of an appeal the issues
are of such a nature that the decision sought will have no practical
effect or result, the appeal may be dismissed on this ground alone.
(ii) Save under exceptional circumstances, the
question whether the decision would have no practical effect or
result is to be determined
without
reference
to any consideration of costs.
(b) If, at any time prior to the hearing of an
appeal, the President of the Supreme Courts of Appeal or the Judge
President or the
judge presiding, as the case may be, is prima facie
of the view that it would be appropriate to dismiss the appeal on the
ground
set out in paragraph (a), he or she must call for written
representations from the respective parties as to why the appeal
should
not be so dismissed.
(c) Upon receipt of the representations or,
failing which, at the expiry of the time determined for their
lodging, the President
of the Supreme Courts of Appeal or the Judge
President, as the case may be, must refer the matter to three judges
for their consideration.
(c) The judges considering the matter may order
that the question whether the appeal should be dismissed on the
ground set out in
paragraph (a) be argued before them at a place and
time appointed, and may, whether or not they have so
ordered-
(i) order that the appeal be dismissed, with or
without an order as to the
costs
incurred in any of the Courts below or in respect of the costs of
appeal, including the costs in respect of the preparation
and lodging
of the written representations; or
(ii) order that the appeal proceed in the ordinary
course.
[12]
Nothing has been placed before me in the written submissions which
persuaded me that my finding that the issue of whether the
proceedings should have been preceded by a letter in terms of the Act
had become academic, is erroneous.
[13] In
the instant case, the appeal was against the entire judgment. As
stated, more issues were dealt with in the judgment than
the issue
whether the special plea had become academic. It was during argument
before me, and as a result of the concession made
by the advocate for
the defendants, that written submission were called for in terms of
section 16(2)(b)
of the
Superior Courts Act 10 of 2013
.
[14]
The further question to be asked is whether there are other
compelling reasons why leave to appeal should be granted. The answer
to this is in the affirmative for the reasons set out below.
[15] A
puzzling aspect of this matter is that the plaintiff never sought
condonation for its non-compliance with the Act (even if
it were only
in an excess of caution as it contended that it had complied with the
Act). That would have done away with the special
plea given that the
defendants conceded that they were fully appraised of which case they
had to meet. The fact that the Act clearly
stipulates that non
compliance therewith can be condoned, would indicate that absent an
application for condonation, non-compliance
with the Act would be
fatal.
[16]
Another aspect which requires careful scrutiny, is whether compliance
with the Act is still obligatory when a defendant has,
by its
conduct, indicated that it does not seek to rely on the Act.
Non-reliance on the Act for a considerable period of time coupled
with setting out its defence in full, would indicate that a defendant
has given its tacit consent to non-compliance with the Act
(as
envisaged by the Act). This question is intertwined with the
Constitutional prescript of access to the Courts for litigants.
[17]
Further, it is also important to establish, as a legal concept,
whether the word "debt" is used in the Act merely
to refer
to damages in the ordinary sense of the word or whether, by now, the
jurisprudence has developed to a point where the
term has a wider
connotation (particularly in a case where the doors of a court may be
shut on a litigant as a result of a strict
interpretation of the
term).
[18]
Because of the vast number of cases brought against organs of the
State on a daily basis, it is in the interests of justice
that
clarity be obtained on these issues.
[19]
For these reasons, I further hold that there are compelling reasons
why a full court should pronounce on these issues.
[20]
Taking into considerations that submissions have already been called
for in terms of section 16(2)(a) read with section l 7(l)(b),
leave
to appeal is granted and the matter is referred to a full court of
this division.
___________________
JANSEN
J
JUDGE
OF THE HIGH COURTS
For
the Plaintiff
Advocate JGW Basson (083 272
7899)
Instructed
by
Maluleke Msimang & Associates
(012 323 3832) (Ref. No. Mr Matlala/RJ/CIV.1584)
For
the Defendants
Advocate
G
I
Hulley SC and Advocate T Hutamo (083 558
0823
I
011
282 3700)
Instructed
by
The State Attorney (012 309 1579) (Ref
No. 6519/2010/Z23)
[1]
The whole section 16(2) is quoted for ease of reference