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[2012] ZAFSHC 38
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Moqhaka Muniipality v Mabula (2292/2008) [2012] ZAFSHC 38 (15 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A189/11
Case No. : 2292/2008
In the appeal of:-
MOQHAKA
MUNICIPALITY
…....................................................
Appellant
(Defendant in the Court
a
quo
)
and
MOTSOAKI
CONSOLATION MABULA
…..............................
Respondent
(Plaintiff in the Court
a
quo
)
_______________________________________________________
CORAM:
CLAASEN, AJ
et
CHESIWE, AJ
_______________________________________________________
HEARD ON:
5
MARCH 2012
_______________________________________________________
JUDGMENT BY:
CHESIWE, AJ
_______________________________________________________
DELIVERED:
15 MARCH 2012
_______________________________________________________
[1] The appellant,
Moqhaka Municipality, is the defendant in the Court
a quo
. The
respondent, Motsoaki Consolation Mabula, is the plaintiff in the
Court
a quo
.
The respondent issued
summons in her capacity as mother and guardian of the minor child,
Thabang Relebohile Mabula, currently 13
years old. At the time of the
incident the child was five years old.
[2] The appeal in this
matter arises from an action instituted by the respondent during
August 2008, in which she claimed damages
of R100 000,00 from the
appellant.
[3] The facts of this
matter are summarised as follows:
On 23 November 2003 the
minor child of the respondent fell in an open sewerage drain that is
under the control of the appellant.
The minor child was
admitted in hospital with vomiting, diarrhoea and a frequent
coughing.
[4] The respondent wrote
a letter of demand to the appellant on 8 November 2005. It is
recorded that the letter was forwarded in
terms of Act 40 of 2002.
The appellant responded with a letter dated 17 November 2005, stating
that the claim has been send to
their insurer and the respondent must
keep the matter in abeyance until the insurer has responded.
[5] The Court
a quo
had to determine whether the respondent complied with section 3(2) of
the Institution of Legal Proceedings Against Certain Organs
of State,
Act 40 of 2002 and whether the claimed has not prescribed in terms of
the
Prescription Act, 1969
.
[6] The Court
a quo
ruled that the appellant condoned the non-compliance of the
provisions of the Act by not objecting to the late delivery of the
letter of demand, but instead responded with a letter referring the
matter to their insurer. The court
a quo
also ordered that the
claim has not prescribed in terms of the
Prescription Act.
[7
] Appellant filed heads
of argument. The respondent has not filed heads of argument. The
respondent’s attorney send a letter
indicating that the
respondent wish to oppose the appeal, but due to financial
constraints she is unable to brief counsel regarding
the appeal.
[8] Advocate Reinders, on
behalf of the appellant, submitted that the respondent did not comply
with section 3 of the Act. He argued
that the magistrate erred in
making an order that the respondent had complied with the provisions
of section 3(2)(a) of the Act.
He submitted that the appeal must
succeed with costs and that the matter be referred back to the
magistrate’s court for purposes
of removing it from the roll
and to allow the respondent an opportunity to file an application to
condone the non-compliance of
section 3 of the Act.
[9] Section 3(2)(a) of
the Institution of Legal Proceedings Against Certain Organs of State
specifically provides that a notice
must
“
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) ...”
[10] The respondent,
though there was no appearance, nor any heads of argument filed,
appears to have assumed that after issuing
summons and receiving a
letter from the appellant, the appellant condone the non-compliance
in terms of section 3(2)(a) of the
Act.
The section 3 clearly
states that no legal proceeding for the recovery of a debt may be
instituted against an organ of state unless-
“
the
creditor has given the organ of state in question notice in writing
of his or her intention to institute the legal proceedings
in
question”.
[11] It is common cause
that the said notice has not been served on the defendant within six
months period as required. Respondent
only issued summons two years
later. Nor did the respondent make an application for condonation in
terms of section 4(1) of the
Act.
[12] To issue summons
without first complying with the provisions of section 3(4) for
condonation renders that the summons are premature.
[13]
In
MINISTER OF SAFETY AND SECURITY v DE WITT
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) the court held that an application for
condonation for failure to comply with section 3(1) of the Act may be
brought after
the institution of proceedings.
[14] The respondent in
this matter has already issued summons. The respondent thus has a
remedy of applying for condonation. Condonation
must be applied for
as soon as the party concerned realises that it is required or if the
state organ makes an objection to the
absence or late service of the
notice.
[15] With regard to
prescription, the Prescription Act 68 of 1969 (“the Act”)
makes provision for a minor that prescription
would not run against a
minor. The section provides that:
“
Completion
of prescription is postponed in certain circumstances if the person
against whom the prescription is running is a minor.”
The issue of prescription
in this matter is therefore not relevant plea as the minor is
currently 13 years.
[16] In the circumstances
I am of the view that respondent should have proceeded with an
application for condonation, in view of
the fact that the court has a
discretion to grant condonation in respect of the appellant’s
failure to comply with the requirements
of section 3(2) of the Act.
[17] Accordingly I make
the following order:
1. The appeal is
upheld with costs.
2. The order of the
Court
a quo
is set aside and substituted with the following
order:
“
The
summons are removed from the roll.”
______________
S. CHESIWE, AJ
I concur.
________________
J.Y. CLAASEN, AJ
On behalf of appellant:
Adv. S.J. Reinders
Instructed by:
Rosendorff Reitz Barry
BLOEMFONTEIN
On
behalf of respondent: In person