About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2015
>>
[2015] ZAECMHC 43
|
|
Minister of Safety And Security v Bahle (362/09) [2015] ZAECMHC 43 (19 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, MTHATHA
CASE NO: 362/09
DATE: 19 MARCH 2015
In the matter between:
MINISTER OF SAFETY AND
SECURITY
...........................................................................
Appellant
And
MPHANGELI
BAHLE
.........................................................................................................
Respondent
JUDGMENT
BLOEM, AJ
[1] This is an appeal against a
judgment delivered by Makaula J on 12 April 2012, the learned Judge
having granted leave to appeal
to this court on 22 October 2012.
[2] On 20 February 2009 the respondent
instituted an action for damages against the appellant arising from
his arrest on 31 October
2008 and subsequent detention until his
release on 1 November 2008. The respondent pleaded inter alia that he
complied with the
provisions of the Institution of Legal Proceedings
against certain Organs of State Act, 2002 (Act No. 40 of
2002)(hereinafter referred
to as “the Act”). The
appellant delivered a special plea and plea over. In his special plea
the appellant alleged that
the respondent was barred from proceeding
with his action against the appellant “due to his failure to
comply with the provisions
of section 3(2)(a) read with section 3(3)
of the ... Act’ and prayed “for the upholding of his
special plea with costs”
[3] The issue whether or not the
respondent complied with the provisions of the Act was debated before
Makaula J who came to the
conclusion that the appellant had
substantially complied with the provisions of the Act. The learned
Judge accordingly dismissed
the appellant’s special plea with
costs. It is against the dismissal of the special plea that the
appellant now appeals to
this court.
[4] The issue in this appeal is whether
or not a court can condone a creditor’s failure to serve a
notice on an officer referred
to in section 4(1 )(a) of the Act
without an application for condonation where the organ of state
received the notice within the
six month period referred to in
section 3(2)(a) of the Act.
[5] The Act makes provision for notice
requirements in connection with the institution of legal proceedings
against certain organs
of state in respect of the recovery of a debt.
In terms of section 3(2)(a) of the Act a person who intends to
institute legal proceedings
against an organ of state for the
recovery of a debt must, within six months from the date on which the
debt became due, serve
a written notice on the organ of state in
accordance with section 4(1)
wherein he or she gives notice of his
or her intention to institute legal proceedings. The South African
Police Service (Department
of Police) is an organ of state, being a
national department. In this regard reference is made to section 1 of
the Act as read
with the first column of schedule 1 to the Public
Service Act, 1994 (Proclamation 103 of 1994).
[6] At the hearing of the special plea
and by agreement the parties placed two documents before Makaula J as
evidence. The first
one is a letter dated 21 November 2008 that the
respondent’s attorney addressed to the appellant wherein he set
out the facts
giving rise to the respondent's claim for arrest and
detention. The second one is a letter dated 23 January 2009 from the
office
of the Eastern Cape Provincial Commissioner of the South
African Police Service wherein he advised the respondent’s
attorney
“that the matter has been referred to Mthatha Police
Station as the incident occurred in their respective areaAccordingly,
as at 23 January 2009, at the latest, the organ of state had
knowledge of the respondent’s intention to institute legal
action against the appellant based on his arrest and detention, that
is within three months from the date when the respondent’s
cause of action arose. There can be no doubt that the respondent
complied with the provisions of the section 3(2) of the Act to
the
extent that he served a notice on the South African Police Service.
In that notice he set out the facts giving rise to his
claim and he
gave notice of his intention to institute legal proceedings against
the appellant.
[7] The next enquiry is whether that
notice was “served on the organ of state in accordance with
section 4(1)”, as required
by section 3(2)(a). As Makaula J
pointed out in his judgment, the appellant’s main complaint was
that the respondent did
not comply with the provisions of section 4(1
)(a). That section requires a notice, in the case of the South
African Police Service,
to be served on its National Commissioner by
delivering it by hand or by sending it by certified mail or
electronic mail or by
facsimile. In this case it does not matter
whether the notice was delivered by hand or sent by certified or
electronic mail or
by facsimile.
[8] The notice was addressed to the
appellant, not the National Commissioner of the South African Police
Service. Although the notice
was served on the organ of state, it was
not served in accordance with section 4 (1). Is an application for
condonation necessary
where the respondent failed to serve the notice
on the National Commissioner in accordance with section 4(1)?
[9] The purpose of a notice
contemplated in section 3 of the Act is to give the organ of state an
opportunity to investigate the
claim set out in that notice, to
enable the organ of state to consider that claim responsibly and to
decide, before getting embroiled
in litigation at public expense,
whether to defend the action or settle the claim. (Mohlomi v Minister
of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) at 126D-E). In this case the notice
was received by the appellant’s office which must have referred
it or caused it
to be referred to the office of the Eastern Cape
Provincial Commissioner. On 23 January 2009 the latter office
referred it to the
Mthatha police station, obviously for the
respondent's claim to be investigated by members of the South African
Police Service
attached to that police station.
[10] Against that background, does it
matter that the notice was addressed to the Minister of Police, the
appellant herein, instead
of the National Commissioner of the South
African Police Service?
[11] Mr Sishuba, counsel for the
appellant, submitted that, because the notice was defective, the
respondent should have applied
to court for condonation in terms of
section 3(4)(a) of the Act. The defect that he referred to is the
respondent’s failure
to serve the notice on the National
Commissioner Despite the fact that the notice was served on the
appellant (when it should have
been served on the National
Commissioner), there can be no doubt that the purpose of the Act was
achieved when the Provincial Commissioner
forwarded the notice to the
Mthatha police station, obviously for the respondent’s claim to
be investigated. Mr Sishuba was
unable to show how, in the
circumstances of this case, the object of the Act was frustrated or
undermined or how the appellant
was prejudiced. In my view, since the
Provincial Commissioner forwarded the notice to the Mthatha police
station for the respondent’s
claim to be investigated, which
happened within three months from the date when the cause of action
arose and since the Provincial
Commissioner assisted the respondent
to bring the respondent’s claim to the attention of the Mthatha
police station for investigation
thereof, the respondent has
substantially complied with section 3(2)(a) which requires that the
notice be served on the South African
Police Service in accordance
with section 4(1). (Moodliar NO and Others v Hendricks NO and Others
2011 (2) SA 199
(WCC) at 206C-D).
[12] Makaula J referred to the Moodliar
case when he determined that service of the notice on the appellant
and its onward transmission
to the Mthatha police station
substantially complied with the provisions of section 4(1). In that
case
Davis J referred to LC Steyn Die Uitieg
van UJette (5ih Ed at 201) where the learned author, in dealing with
the issue of compliance,
had the following to say:
‘Somtyds egter word ook in
hierdie verband slegs sogenaamde “wesentlike” nakoming
vereis, maar dit word oorwegend
gegee dat die korrekte standpunt
gestel is in /Ha ha raj and Others v Rampersad 1964 (4) SA638 (A) at
646D-D, waar verklaar word
...
“The enquiry, I suggest, is not
so much whether there has been ‘exact’, ‘adequate’
or ‘substantia!’
compliance with this injunction but
rather whether there has been compliance therewith. This enquiry
postulates an application
of the injunction to the facts and a
resultant comparison between what the position is and what, according
to the requirements
of the injunction, it ought to be. It is quite
conceivable that a Court might hold that, even though the position as
it is is not
identical with what it ought to be. the injunction has
nevertheless been complied with. In deciding whether there has been a
compliance
with the injunction the object sought to be achieved by
the injunction and the Question of whether this object has been
achieved
are of importance.*” (my underlining)
[13] I do not agree with Mr Sishuba
that the Moodliar case is distinguishable from the present one. The
facts of this case show
that “the object sought to be achieved”
by the Act “has been achieved”. There was accordingly
compliance
with the provisions of section 4(1), albeit substantial
compliance.
[14] Since the respondent has
substantially complied with the provisions of section 4(1 )(a), there
was no need for him to make
an application for the condonation of his
failure to serve the notice in accordance with the provisions of
section 4(1 )(a). in
any event, to require the respondent, in the
circumstances of this case, to bring an application for condonation
would be to place
form over substance. There is accordingly no reason
to disturb the finding of Makaula J “that there has been
substantial
compliance with the provisions of section 4(1)(a)ofthe
Act”
[15] This judgment should not be read
to mean that, if a notice is sent to or served on a person or entity
other than the officer
referred to in section 4(1), such defective
service will be treated as compliance with the Act. Each case must be
considered on
its own peculiar facts.
[16] In the result, the appeal is
dismissed with costs.
G BLOEM
ACTING JUDGE OF THE HIGH COURT
I agree. It is so ordered.
J PICKERING
JUDGE OF THE HIGH COURT
I agree. It is so ordered.
R BROOKS
ACTING JUDGE OF THE HIGH COURT
For the Appellant: Adv MH Sishuba,
Instructed by the State Attorney,
Mthatha
For the Respondent: Adv V Kunju,
Instructed by M Bahle Attorneys,
Mthatha
Date of hearing: 6 March 2015
Date of delivery: 19 March 2015