About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2011
>>
[2011] ZAKZDHC 28
|
|
Shange v MEC for Education, Kwazulu-Natal (15860/2008) [2011] ZAKZDHC 28; 2012 (2) SA 519 (KZD) (17 June 2011)
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
REPORTABLE
CASE NO: 15860/2008
In the matter between:
SIMPHIWE SHANGE
…......................................................................
Applicant
and
THE MEC FOR EDUCATION KWAZULU NATAL
…..................
Respondent
JUDGMENT
Heard: 7
th
March 2011
_______________________________
Delivered:
17 June2011
____
P. GOVINDASAMY AJ
[1] This is an application for condonation in terms of
Section 3 (4) of the Institution of Legal Proceedings against certain
Organs
of State Act, 40 of 2002 (“the Act”) for
Applicant’s non-compliance with Section 3 (2) (a) of the Act.
[2] Applicant’s cause of action is based on a
claim for damages arising from an alleged assault upon him by Mr
Biyela, the
deputy principal in June 2003 when he was a 15 year old
learner at Gcwalulwazi High School in Eshowe, Kwazulu Natal.
[3] The background to the application is relatively
straight forward. On 26 January 2006 when the applicant first
consulted with
his Attorneys Norman, Wink & Stephens he was
approximately 18 years and 5 months old. On 2 February 2006, his
attorney, Caroline
Emma Smyth sent a Notice in terms of Section 3 of
the Institution of Legal Proceedings
against certain Organs of State Act 40 of 2002 to the
National Minister of Education in Pretoria. This notice briefly set
out the
facts giving rise to the applicant’s claim and stated
that the applicant intends to institute legal proceedings against the
Minister of Education.
[4] On 1 December 2008 Ms Smyth caused a summons to be
issued, on the applicant’s behalf, against the MEC for
Education, KwaZulu-Natal,
the respondent. The Summons which was
served on the Respondent on 3 December 2008 was met with a special
Plea on 18 March 2009.The
respondent also pleaded over, but for
present purposes it is not relevant to go into details thereof.
[5] In the special plea respondent asks for the
applicant’s claim to be dismissed on the basis that he failed
to comply with
the provisions of Section 3(1)(a) and Section 3(2)(a)
of the Act in that no notice as contemplated was given to the
respondent
nor served on the respondent. Indeed notice was not given
to the respondent in terms of Section 3 of the
Act. Ms Smyth took the blame for this omission. At
paragraph 11 of her affidavit to the founding papers she states:
“I wish to stress at the outset that the Applicant was neither
aware of nor responsible for the failure to comply with Section
3(2)(a) and that the responsibility for such failure is my own, for
which I am deeply sorry.”
This oversight on her part is the subject of the present
application.
[6] It is important to mention that Ms Smyth upon
receiving the respondent’s Special Plea and Main Plea consulted
with Senior
Counsel in March 2009. As regards the respondent’s
Special Plea, Ms Smyth’s then understanding was that respondent
took issue with the fact that the Applicant had not given notice
within 6 months of the delict itself. In the
light of her instructions that the applicant had no
appreciation of the fact that a delict had been committed against him
until
January 2006 and since
the notice was sent to respondent on 2 February 2006,
she was unconcerned about the Special Plea. Above all, Senior
Counsel’s
advice
was that the Special Plea could be dealt with at the
trial and accordingly she did not advise the applicant to address the
Special
Plea there and then.
[7] Instead, Ms Smyth continued to advance the main
action and with Senior Counsel’s assistance a notice of
exception to the
respondent’s Plea on the merits was filed on
7
th
April 2009. Thereafter the respondent delivered its
amended Plea on 27 May 2009.
[8] After pleadings closed and before applying for trial
dates, Ms Smyth and Senior Counsel consulted with the applicant and
his
witnesses. Due to various difficulties she was unable to
timeously arrange consultations with the applicant and his witnesses.
However this delay was not due to her fault. The witnesses were based
in KwaZulu Natal and were difficult to contact. It was only
then that
she appreciated for the first time that the notice had been
dispatched to the National Minister for Education and not
to the
respondent and that these were distinct Organs of State in terms of
the Act. She also then understood for the first time
that the
respondent’s Special Plea may have pertained, not only to the
Applicant’s failure to give notice within 6
months of the
incident, but also to the fact that it had not received notice at
all.
[9] Ms Smyth dispatched a further Notice dated 7 May
2010 in terms of Section 3 of the Act to the respondent and at the
same time
brought the application for condonation. The respondent
opposed the application primarily as the applicant’s claim has
prescribed
in terms of section 3(4)(b)(i) of the Act. In addition the
respondent alleged that the
requirements in terms of section 3(4)(b)(ii) and (iii)
have not been satisfied.
[10] The issue for determination is whether or not the
Applicant has satisfied all three requirements of Section 3(4)(b)
which must
be interpreted in light of the spirit and purpose of the
Act. The purpose of the Act is described in the preamble as follows:
“to regulate the prescription and to harmonise the periods of
prescription of debts for which certain organs of state are
liable;
to make provision for notice requirements in connection with the
institution of legal proceedings against certain organs
of state in
respect of the recovery of debt;…”
What the Act does is that it “brings
together and rationalizes under one statutory umbrella provisions
which were previously
scattered through many statutes”.
1
[11] The need for procedural
requirements for litigating against organs of state has been
sanctioned by our courts and held to be
constitutional.
2
In Mohlomi v Minister of Defence
3
,
Didcott J pointed out that:
“Rules that limit the time during which litigation may be
launched are common in our legal system as well as many others.
Inordinate delays in litigating damage the interests of justice. They
protract the disputes over the rights and obligations sought
to be
enforced
,
prolonging the uncertainty of all
concerned about their affairs. Nor in the end is it always possible
to adjudicate satisfactorily
on cases that have gone stale. By then
witnesses may no longer be available to testify. The memories of ones
whose testimony can
still be obtained may have faded and become
unreliable. Documentary evidence may have
disappeared. Such rules prevent procrastination and those harmful
consequences of it. They thus serve a purpose to which no exception
in principle can cogently be taken.”
[12] It appears to be common cause that the applicant’s
claim for damages is a claim for the recovery of a debt as envisaged
and defined in Section 1 of the Act and that the respondent is an
organ of state.
[13] Section 3 of the Act reads as
follows:
4
“
(1) No legal proceedings 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 or its intention to institute the legal
proceedings in question;…”
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)
For purposes of sub-section (2) (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 or State wilfully prevented him or her or it from
acquiring
such knowledge;”
[14] The giving of notice in terms of the Act is a
pre-emptory requirement. Condonation may be granted for non
compliance with the
notice period provided there has been compliance
with Section 3 (4) (b)of the Act which reads as follows:
“
The court may grant an application referred
to in paragraph (a) if it is satisfied that -
the debt has not been extinguished by prescription;
(ii) good cause exists for the failure by the creditors; and
(iii) the organ of State was not unreasonably prejudiced by the
failure.”
[15] All three requirements must be satisfied in order
for the court to grant condonation.
5
[16] In order to exercise its discretion and grant an
application in terms of Section 3 (4) (b) the court must be satisfied
that
there is an extant cause of action
6
.
This is clearly evident if one has regard to the provision of Section
3(4)(b)(i).
[17] The provisions of the Act must however, as a
starting point, be read in conjunction with the provisions of the
Prescription Act, 68 of 1969
, specifically those provisions that
relate to minors.
Section 13
of the
Prescription Act reads
as
follows:
“
(1) If –
the creditor is a minor or is insane or is a person under
curatorship or is prevented by superior force including any law or
any order of court from interrupting the running of prescription as
contemplated in
section 15
(1);…
(i) the relevant period of prescription would, but for the provisions
of this subsection , be completed before or on, or within
one year
after, the day on which the relevant impediment referred to in
paragraph (a), (b), (c), (d), (e), (f), (g) or (h) has
ceased to
exist, the period of prescription shall not be completed before a
year has elapsed after the day referred to in paragraph
(i).”
[18] Thus ordinarily prescription would have been
delayed for a period of a year after the plaintiff had become a
major. The incident
giving rise to the Applicant’s claim
against the Respondent occurred in June 2003 when the Applicant was
15 years old and
a minor. More importantly, at that time, the
Applicant was told that the incident was a mistake. This is what he
understood it
to be until early in January 2006 when, following
questions from a friend of his mother’s about the eye patch he
was wearing,
it was suggested to him that the Deputy Principal’s
conduct was wrongful and that he should lay a complaint with the
Public
Protector, which he did, on 19 January 2006. He consulted with
his Attorney Ms Smyth on 26 January 2006. He knew at whose hand the
incident was committed but only after receiving advice in January
2006 did the Applicant appreciate that the Deputy Principal had
acted
wrongfully. This is not in dispute.
[19] It was this appreciation in January 2006 that would
have set prescription in motion but for the fact that the Applicant
was
18 years old
at the time. He was therefore a minor against whom
prescription did not run, minority being a statutory impediment to
prescription.
[20] The Applicant who was a minor at the time when the
envisaged claim arose, prior to the commencement of the Children’s
Act
7
and in
terms of the
Prescription Act, would
have had a year
after he turned 21 to institute the envisaged action, ie. by 26
August 2009.
[21] On 1 July 2007, however, with the commencement of
section 17
of the Children’s Act, which reduced the age of
majority to 18 years, and in terms of the
Prescription Act the
plaintiff had one year from 1 July 2007 to institute his envisaged
action. i.e by 30 June 2008.
[22] It is necessary to refer to the applicable general
principles referred to in
section 6
of the Children’s Act which
read as follows: -
“
(1) The general principles set out in this
section guide-
(a) the implementation of all legislation applicable to children,
including this Act; and
(b) all proceedings, actions and decisions by any organ of state in
any matter concerning a child or children in general.
(2) All proceedings, actions or decisions in a matter concerning a
child must-
respect, protect, promote and fulfil the child’s rights set
out in the Bill of Rights,… and the rights and principles
set
out in this Act, subject to any lawful limitation;
respect the child’s inherent dignity;
treat the child fairly and equitably;
protect the child from unfair discrimination on any ground …;”
[23] When applying the Children’s Act
8
,
it is clear that the rights which a child has in terms thereof,
supplement the rights which a child has in terms of the Bill of
Rights and all organs of state in any level of government are obliged
to respect, protect and promote the rights of Children contained
in
the Children’s Act. In terms of the Constitution of
the Republic of South Africa, the rights of children are
of paramount importance.
9
The Applicant was a child at the time his cause of
action arose and accordingly the Constitution applied to him.
[24] In my view the proper approach to this matter is to
consider the effect of the repealed law in terms of the common law
principles
of the interpretation or the relevant provisions of
section 12(2) of the Interpretation Act 33 of 1957 which reads as
follows:
“
Where a law repeals any other law, then
unless the contrary intention
appears, the repeal shall not-
(a) …;
(b) affect the previous operation of any law so repealed or anything
duly done or suffered under the law so repealed; or
(c) affect any right, privilege, obligation or liability acquired,
accrued or incurred under any law so repealed
;
(d) …
(e) affect any investigation , legal proceeding or remedy in respect
of any such right, privilege, obligation, liability, forfeiture
or
punishment as in this subsection mentioned,
and any such investigation, legal proceeding or remedy may be
instituted, continued or enforced, and any such penalty, forfeiture
or punishment may be imposed, as if the repealing law had not been
passed.”
[25] In Standard General Insurance Co Ltd v Verdun
Estates (Pty) Ltd and Another,
10
Goldstone AJA, quoted with approval the
dictum
of Friedman J in Teblanche v South African Eagle
Insurance
Co Ltd
1978
(2) SA 501
(N) at 504F-H when he had to consider the 1987 amendments
to the
Prescription Act to
section 24 (1) of the Compulsory Motor
Vehicle Insurance Act 56 of 1972, as follows:
“
It is a rule of statutory interpretation
that the Legislature is presumed to be acquainted with the state of
the law… when
it passed the amending Act.”
[26] On 1 July 2007 the Children’s Act 38 of 2005
came into operation and changed the age of majority from 21 to 18
years.
The Applicant was then 19 years and 10 months old and
therefore already a major in terms of that statute. On that day the
statutory
impediment ceased to exist. It followed, therefore, that if
taken literally, the effect of this change in the age of majority
would
be to impinge upon the applicant’s accrued rights. That
is because the effect of the reduction of the age of majority read
with
Section 13
of the
Prescription Act was
that he now had to
institute his
claim within one year of his achieving majority ie. 18
years or, at very best for him, within one year of the commencement
of the
Children’s Act.
[27] Although the effect of the amending Act is not
procedural in nature, it impacts negatively upon the applicants
substantive
right to a claim for damages by impairing and limiting
its enforcement. The interpretation given to Section 17 of the
Children’s
Act, that is, to allow the impediment and the right
to Applicant’s claim to be exercised sooner than age 21, has
the effect
of abolishing his right, which is protected in terms of
Section 6 read with section 28 (2) of the Constitution. In this
regard
I refer to the explanation of Marais JA in Minister of Public
Works v Haffejee NO
11
as follows:
“
Thus, even if s 12(2) of the Interpretation
Act is applicable to a case where some provisions of a law (as
opposed to the entire
law) are repealed (as was held to be the case
in
Bell
v
Voorsitter van die Rasklassifikasierraad
en Andere
1968 (2) SA 678
(A) at 683 H
-684A), I am unable to accept that the amending Act affected any
right or privilege of the respondent’s within
the meaning of
those expressions in s 12(2)(c). Counsel for respondent conceded,
correctly so it seems to me, that once s 12(2)(c)
is found to be
inapplicable, no succour for the respondent can be found in s
12(2)(e).
That is because the latter provision can operate only when a ‘right,
privilege, obligation or liability’ within the
meaning of the
former provision has been found to exist.”
[28] The legislature must have been aware that when the
age of the majority changed from 21 years to 18 years under the
Children’s
Act it did not intend to affect the Applicants right
to a claim for damages against the Respondent under the Age of
Majority Act.
I am of the view that once that date is established ie.
29 August 2009, it remains immutable and any change in Applicants
status,
read with the
Prescription Act, would
not affect that date.
This construction does not
offend the plain wording of
Sections 6
and
8
of the
Children’s Act read with Section 28 (2) of the Constitution.
Any other interpretation in terms whereof the Applicant
would be
deprived of his acquired right or accrued
right would lead to an absurdity. Moreover it may be
said to be irrational and discriminatory of the Applicant. As between
the general
run of plaintiffs and Applicant whose case Section 17 of
the Children’s Act affected, to his disadvantage, there is
inequality
12
,
which was not intended by the legislature.
[29] It is surely not in the interests of justice or
fairness and equity that Applicant’s right may be taken away by
the stroke
of a pen. Imagine waking up on 1 July 2007 to find that
not only your status has changed but also certain rights which you
were
entitled to or which accrued to you no longer exist. The barring
of Applicant’s common law claim because overnight he became
a
major is untenable. This unjustifiable consequence
could not have been intended by the legislature, as it
imposes unreasonable hardship. This interpretation cannot be
sustained
13
.
[30] The interpretation advanced by the Applicant and
assistance therein may be found in Section 39 (2) of the Constitution
finds
favour with me because to construct it in any other way would
be unduly strained and would infringe upon the right of access to
courts
14
protected by Section 34 of the Constitution.
[31] Nothing in the Children’s Act indicates that
it will operate retrospectively. In this context, I refer to Minister
of
Public Works v Haffajee
15
,
where Marais JA after reviewing the authorities had the following to
say;
‘
In other words, it does not follow that
once an amending statute is characterised as regulating procedure it
will always be interpreted
as having retrospective effect. It will
depend upon its impact upon existing substantive rights and
obligations. If those substantive
and obligations remain unimpaired
and capable of enforcement by the invocation of the newly prescribed
procedure, there is no reason
to conclude that the new procedure was
not intended to apply.
Aliter
if they are not.’
In my view therefore the amending statute will not
always be interpreted as having retrospective effect. It will depend
on the impact
of Applicant’s substantive rights. Accordingly,
the Children’s Act must be interpreted in a manner which
promotes the
spirit purport and objects of the Bill of Rights as
contained in the Constitution.
16
At the time when the Applicant’s cause of action
arose he had accrued rights which were protected by statute
17
until he had attainted the age of 22, within which time
he may bring his claim for damages.
[32] As indicated, Section 28 (2) of the Constitution
protects the rights of children. The Children’s Act must
therefore be
read in such a manner as to not interfere with any
accrued rights of a child. Accordingly on a proper interpretation of
Section
17 of the Children’s Act read with the relevant
provisions of the
Prescription Act, a
child whose cause of action
arose before the commencement of
Section 17
of the Children’s
Act is still entitled to the same period of time in which to
institute his or her claim for damages as
he or she would have had,
had the age of majority not been changed.
[33] Obviously, the same does not apply to children
whose cause of action arose after the commencement of
Section 17.
It
must be stressed however, that
Section 17
could never have been
intended to take rights away from a child. Any other construction
offends the plain wording of section 12
(2)(b) and (c) of the
Interpretation Act. In the circumstances, the Applicant’s claim
has not prescribed.
[34] I now turn to the other two criteria referred to in
Section 4(b) of the Act. Firstly, does good cause exist for the
failure
for the Applicant to give notice to the Respondent, notifying
it of his intention to sue for his damages. It emerges from the
undisputed
facts that Applicant became aware of his claim on 18
January 2006, when he was approximately 18 years and 5 months old. In
this
regard Applicant’s claim would in the ordinary course have
prescribed on 19 January 2009, ie 3 years after he had become aware
of his claim. The fact that summons was served on Respondent on 3
December 2008, prescription was thereby interrupted
18
.
[35] For similar reasons to those set out hereinabove,
the Applicant did not initially give the Respondent notice in terms
of the
Act. He did not appreciate that the Respondent was responsible
for his injury and therefore that he had a claim against it. However,
as a result of an oversight on Applicant’s Attorneys part,
notice, on the Applicant’s behalf, was sent to the Minister
of
National Education and not to the Respondent. Smyth’s affidavit
reveals a devil’s brew of mistakes, failures and
delays in the
prosecution of Applicant’s case. Clearly the oversight on her
part arose from a failure to appreciate the fact
that the Minister of
Education and the Respondent are two distinct organs of State. Mr
Bedderson submitted that the Applicant’s
Attorney’s
failure cannot be attributed to the Applicant. I agree that any
failure on the part of Applicants Attorney should
not be held against
the Applicant.
[36] Secondly, was the Respondent not unreasonably
prejudiced by Applicant’s failure to give notice timeously? Any
prejudice
which the
Respondent may have suffered as a result of failure to
give notice, could not be regarded as unreasonable or insurmountable
in the
circumstances. Furthermore, the teacher in question remains at
the Applicant’s former school and is therefore easily
contactable.
[37] The Applicant has at the very least, reasonable
prospects of success in the main action. Despite the Respondent’s
bare
denial of the incident in question, there are least two
witnesses who will testify for the Applicant that they witnessed the
Deputy
Principal in question inflict the injury. In addition there is
a third witness who may also be able to testify. There is without
doubt a prima facie case against the Respondent. The Applicant has a
fundamental right to have his evidence and that of his witnesses
evaluated in a fair trial against any admissible opposing testimony
that the Respondent’s witnesses may give at the hearing.
[38] Furthermore, this case is of vital importance to
the Applicant. The particulars of claim explain how the injury to his
eye
has set him back in life. The psychologist’s report annexed
to the particulars of claim supports this view. The outcome of
this
case will have an enormous impact on the future of the Applicant’s
quality of life.
[39] The Applicant in his own words sets out his prima
facie case against the Respondent and that this case is of extreme
importance
to him. Since January 2006 it has been the bona fide
intention of the Applicant to pursue his claim against the Respondent
and
the oversight of Smyth should not prevent him from doing so. It
must be stressed that the Applicant was neither aware of nor
responsible
for the failure to comply with Section 3 (2) (a).
[40] Under the circumstances I am of the view that a
proper case for condonation has been made out. The Applicant is
entitled to
the benefits of constitutional dispensation that promotes
rather than inhibits access to courts of law.
[41] In the result the application for condonation is
granted with costs.
________________________
P Govindasamy AJ
Appearances
for Applicant: Advocate B S M Bedderson
Instructed by : Livingstone Leandy Inc
for Respondent: Advocate J I Henriques
Instructed by: State Attorney
1
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) para 7 at
315H
2
Minister
of Safety and Security v De Wit
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) para 2 at
458E;
Minister of Agriculture and Land Affairs v C J Rance
(Pty) Ltd
2010 (4) SA 109
(SCA) para 13
at
113 E
3
[1996] ZACC 20
;
1997
(1) SA 124
(CC) para 11 at 129H-I-30A
4
Institution
of Legal Proceedings against certain Organs of State Act 40 of 2002.
5
Madinda
supra para 16 at 318C; De Witt supra para 13 at 462F; Minister for
Agriculture supra
para
11 at 112 I-J-13A.
6
Madinda
supra para 9 at 316D
7
Section
17
of the
Childrens Act 38 of 2005
8
Section
8
(1) read with
Section 8
(2) of the Children’s Act
9
Section
28 (2) of the Constitution of the Republic of South Africa Act 108
of 1996
10
[1990] ZASCA 27
;
1990
(2) SA 693
(A) at 697D-E
11
1996
(3) SA745 (A) at 755 I-J-56 A-B
12
Moholmi
v Minister of Defence 1997(1) SA 124 (CC) para 21 at 134 B-C
13
Mankayi
v Anglogold Ashanti Limited 2011(5) BCLR 453 (CC) para 69 at 471H
14
Mankayi
supra para 62 at 470B
15
Minister
of Public Works supra at 753B-C
16
Section
39 (2) of the Constitution
17
Section
1 of the Age of Majority Act 57 of 1972;
Section 13
of the
Prescription Act 68 of 1969
18
Section
15
of the
Prescription Act
>