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[2012] ZAECMHC 7
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Bahle v Minister of Safety and Security and Another (362/09) [2012] ZAECMHC 7 (12 April 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION-MTHATHA)
CASE NO: 362/09
Heard on: 25 January
2012
Delivered on: 12 April
2012
In the matter between:
MPHANGELI BAHLE
…...........................................................................
PLAINTIFF
and
THE MINISTER OF SAFETY &
SECURITY & ANOTHER
…................
DEFENDANT
JUDGMENT
MAKAULA J:
A.
Introduction
:
[1] The plaintiff issued summons
against the defendant for
inter alia
unlawful arrest, unlawful
detention and
contumelia
. The defendant raised a special plea
in the following terms:
“
1.
The plaintiff has sued the Minister of Safety and Security in his
official capacity as the first defendant;
2. The plaintiff is
barred from proceeding with this action due to his failure to comply
with the provisions of Section 3 (2) (a)
read with Section 3 (3) (a)
of the Institution of Legal Proceedings Against Certain Organs of
State Act, 2002 (Act 40 of 2002).
Wherefore the first
defendant prays for the upholding of his special plea with costs.”
[2] The plaintiff discovered two
letters which were later introduced as evidence during argument. The
first letter is a notice of
intention to institute legal proceedings
addressed by the plaintiff to the defendant. The second letter is a
response by the Office
of the Provincial Commissioner to the
plaintiff reading thus:
“
Kindly
be advised that the matter has been referred to Mthatha Police
Station as the incident occurred in their respective area.”
B.
Issues
:
[3] Though the special plea refers to
Sections 3 (2) (a)
read with
3 (3) (a) of the Institution
of Legal Proceedings Against Certain Organs of State Act, 40 of 2002
(the Act)
the actual section relevant hereto is
Section 4
(1) (a) of the Act
. Therefore, the issue to be decided is whether
the plaintiff complied with the provisions of the Act by serving the
notice on the
defendant instead of the National or Provincial
Commissioners.
[4] Plaintiff’s argument is that
there was substantial compliance with
Section 4 (1) (a) of the Act
to the extent that the defendant received the notice and acted upon
it immediately hence the response by the Provincial Commissioner.
[5] My understanding of the second leg
of his argument is that the purpose of the Act was to forewarn the
defendant of the impending
action and to give him sufficient facts to
enable it to investigate the claim and properly consider the issue.
He further argued
that that the defendant acted on the notice,
indicates that the failure to serve on it did not result in any
prejudice.
[6] The plaintiff further argued that
there was no need for the plaintiff to have applied for condonation
for the failure to serve
on the defendant. He premised his argument
on the assumption that condonation only applies in two scenarios, viz
(a) where the
plaintiff did not issue the notice within six months
prior to the institution of the proceedings and (b) where there was
no notice
at all issued prior to the issue of summons.
[7] The plaintiff
argued that even though the provisions of
Section
4 (1)(a)
are
peremptory, the defect in these proceedings is not fatal and referred
to the matter of
Unlawful
Occupiers, School Site v City of Johannesburg
1
where the following
was said:
“
[22]
As to the first and second objections pertaining to the contents of
the notice, it is clear that the reference to s 4(1) of
PIE was a
mistake. To that extent the notice was therefore defective. I am also
in agreement with the contention that the grounds
for the application
stated in the notice were too sparse to meet the requirements of s
4(5)(
c).
The
respondents should at least have been told that their eviction was
alleged to be in the public interest. As the appellants also
correctly pointed out it was held in
Cape
Killarney Property
(at
1227E-F) that the requirements of s 4(2) must be regarded as
peremptory. Nevertheless, 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.”
[8] The plaintiff
further referred me to
Nkisimane
& Others v Santam Insurance Co Ltd
2
where the following
was stated:
“
Thus,
on the one hand, a statutory requirement construed as peremptory
usually still needs exact compliance for it to have the stipulated
legal consequence, and any purported compliance falling short of that
is a nullity. (See the authorities quoted in
Shalala
v
Klerksdorp
Town Council and Another
1969
(1) SA 582
(T) at 587A-C.) On the other hand, compliance with a
directory statutory requirement, although desirable, may sometimes
not be
necessary at all, and non or defective compliance therewith
may not have any legal consequence (see, for example,
Sutter
v
Scheepers
1932
AD 165).
In between those two kinds of statutory requirements it
seems that there may now be another kind which, while it is regarded
as
peremptory, nevertheless only requires substantial compliance in
order to be legally effective (see
JEM
Motors Ltd
v
Boutle
and Another
1961
(2) SA 320
(N) at 327
in
fin-328B
and
Shalala’s
case
supra
at
587F-588H, and cf
Maharaj
and Others
v
Rampersad
1964
(4) SA 638
(A) at 646C-E). It is unnecessary to say anything about
the correctness or otherwise of this trend in such decisions. Then,
of
course, there is also the common kind of directory requirement
which need only be substantially complied with to have full legal
effect.”
C.
Legal position
:
[9]
Section 3 (1) of the Act
provides that no legal proceedings for the recovery of a debt may
be instituted against an organ of state
unless
the creditor
has given the said organ of state notice in writing of his or her or
its intention to institute the legal proceedings.
Section 3 (2)(a)
stipulates 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). Section 4 (1)(a)
provides as
follows:
“
Service
of notice
A notice must be served
on an organ of state by delivering it by hand or by sending it by
certified mail or, subject to subsection
(2), by sending it by
electronic mail or by transmitting it by facsimile, in the case
where the organ of state is –
(a) A national or
provincial department mentioned in the first column of Schedule 1, 2
or 3 to the Public Service Act, 1994 (Proclamation
103 of 1994), to
the officer who is the incumbent of the post bearing the designation
mentioned in the second column of the said
Schedule 1, 2 or 3
opposite the name of the relevant national or provincial department.
”
[10]
Schedule 1 to the Public
Service Act
103 of 1994
requires that the notice in terms
of the Act should be served with the National Commissioner of the
South African Police. Furthermore
Section 5 of the Act
deals
with service of process and provides as follows:
“
(1)
(a) Any process by which any legal proceedings contemplated in
section 3 (1) are instituted must be served in the manner prescribed
by the rules of the court in question for the service of process.
(b)
Despite
paragraph
(a)
any process by which any legal proceedings
contemplated in section 3 (1) are instituted and in which the –
. . . ;
(ii) Minister of Safety &
Security is the defendant or respondent,
may
be served on -
(aa)
the National
Commissioner of the South African Police Service as defined in
section 1 of the South African Police Act, 1995 (Act
68 of 1995); or
(bb)
the
Provincial Commissioner of the South African Police as defined in
section 1 of the South African Police Act, 1995, of the Province
which the cause arose .”
D.
Analysis
:
[11] The facts of the
Nkisimane
case are not in all fours or similar to the facts of this
matter. In the
Nkisimane
case, the defendant
(respondent on appeal) pleaded that in terms of
Section 25 of the
Compulsory Motor Vehicle Insurance Act 56 of 1972
the claims by
the plaintiffs (appellants) had not been completed in the prescribed
manner. Having had regard to the contents of
the claim forms and the
requirements of
Section 25, Trollip JA
concluded that there
was substantial compliance with the provisions of that Section in
that there was sufficient information setting
out the nature of the
claim thus affording to the respondent sufficient information to
enable it to decide whether to resist each
claim for compensation or
to settle it before being sued. Similarly,
Unlawful Occupiers
,
supra,
deals with the contents of the notice in terms of
Section 4
(b) of the
Prevention of Illegal Eviction From and
Unlawful Occupation of Land Act 19 of 1998
.
[12] The issues dealt with in both
Nkisimane
and
Unlawful Occupiers
are
found in
Section 3(2)(b) of the Act
which requires that the
notice should 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 creditors.
Section 4 (1)(a) of the Act
deals with the
manner of service of the notice and not the contents of the notice.
[13] The facts bear out that the
defendant received the notice
albeit
it contrary to the
provisions of the Act. Having received it, the defendant referred it
to the proper functionary hence the Provincial
Office’s
response referred to in paragraph 2 above. The contents of the
statement are not in issue, what is in issue is the
service of the
notice. The plaintiff partially complied with the provision of the
Act but for failure to serve on the National
or Provincial
Commissioners as alluded to. The defendants strongly argue that such
failure to strictly comply with the provisions
of the Act must not be
condoned. I, with respect, disagree. I find the following
dictum
by
Davis J
apposite to the issue at hand;
“
Insistence
that a court cannot under any circumstances condone a deviation from
strict compliance may, to some extent, run counter
to the inherent
jurisdiction of the court.”
3
I am therefore of the view that there
has been substantial compliance with the provisions of
Section 4
(1) (a) of the Act
.
[14] The defendants argued further
that the failure by the plaintiff to bring a substantive application
for condonation, even though
that was brought to his attention, is
fatal to the application. I respectfully disagree with that argument
and agree with the plaintiff
that that would have been necessary in
the two scenarios referred to in paragraph 5 above.
In the result, I make the following
order:
1. The special plea is dismissed
with costs.
_________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Counsel for the Plaintiff: Mr V Kunju
Attorneys for the Plaintiff: M Bahle &
Associates
No 7 Park Road
MTHATHA
Counsel for the Defendants: Mr Sishuba
Attorneys for the Defendants: State
Attorneys
c/o E B Sonqwelo Attorneys
Office 31 & 34 First Floor
Old Mutual Building
MTHATHA
1
2005
(4) SA 199
SCA at para 22
2
1978
(2) SA 430
at 434 B-E
3
2011
(2) SA 199
(WCC) 2009
at page 205 para 27