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[2011] ZAKZDHC 92
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Thabani Zulu & Company (Pty) Ltd v Minister of Water Affairs of the Republic of South Africa and Others ([2011] 4 All SA 208 (KZD); 2012 (4) SA 91 (KZD)) [2011] ZAKZDHC 92; [2011] ZAKZDHC 31 (22 June 2011)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL, DURBAN
CASE NO.: 4714/2011
In the matter between:
THABANI ZULU & COMPANY (PTY) LTD
…...................................................
APPLICANT
and
THE MINISTER OF WATER AFFAIRS OF THE
REPUBLIC OF SOUTH AFRICA
…..................................................
FIRST
RESPONDENT
THE MINISTER OF AGRICULTURE, FORESTRY
& FISHERIES OF THE REPUBLIC OF SOUTH
AFRICA
…....................................................................................
SECOND
RESPONDENT
JUDGMENT
RALL AJ
[1] The applicant
intends instituting action against the respondents for payment of the
agreed fees due to it by the respondents
in terms of contracts
concluded by it with the erstwhile Department of Water Affairs and
Forestry of South Africa. The reason why
that department has not been
cited as the respondent is that it has been split up and its two
components now form part of the respondents’
departments.
[2] The present application is brought in terms of s3(4)(a) of the
Institution of Legal Proceedings Against Certain Organs of State
Act,
40 of 2002 (the Act). In it the applicant seeks condonation of its
failure to give notice in terms of s3(1) of the Act of
its intention
to institute the action.
[3] The respondents, through the State Attorney, have neither opposed
the application nor consented to the relief sought by the
applicant.
Instead they have elected to abide the decision of the court.
[4] When the matter came before me on 17 May
2011, I asked counsel for the applicant whether it was necessary to
bring the application.
This I did in the light of the judgments in
Nicor IT Consulting v NW Housing
Corporation
1
and
Director General, Public Works v
Kovacs Investments
2
In both of those cases it was held that the Act only applied to
claims for damages and therefore that in other cases, notice in
terms
of s3(1) was not necessary.
[5] I reserved judgment and afforded the applicant’s counsel
the opportunity of filing heads of argument. Counsel duly provided
me
with the heads of argument and I am grateful for his assistance.
[6] The following parts of the Act are most
relevant for present purposes:
The long title and preamble, the most
relevant parts ofwhich read 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; to repeal or amend certain laws; and
to provide for matters connected therewith.
Preamble
…
..
AND
RECOGNISING THAT-
*the Prescription Act, 1969 (Act
68 of 1969), being the cornerstone of the laws regulating the
extinction of debts by prescription,
consolidated and amended the
laws relating to prescription;
*some of the provisions of
existing laws which provide for different periods of prescription in
respect of certain debts are inconsistent
with the periods of
prescription prescribed by the
Prescription Act, 1969
;
AND
BEARING IN MIND THAT-
…
..
*the Bill of Rights is the
cornerstone of democracy in South Africa and that the State must
respect, protect, promote and fulfil
the rights in the Bill of
Rights;
*section
34 of the Constitution provides that everyone has the right to have
any dispute that can be resolved by the application
of law decided in
a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum;
*the right
of access to courts may be limited to the extent that the limitation
is reasonable and justifiable in an open and democratic
society based
on human dignity, equality and freedom as contemplated in section 36
of the Constitution;
AND RECOGNISING the need to
harmonise and create uniformity in respect of the provisions of
existing laws which provide for-
*different notice periods for
the institution of legal proceedings against certain organs of state
for the recovery of a debt, by
substituting those notice periods with
a uniform notice period which will apply in respect of the
institution of legal proceedings
against certain organs of state for
the recovery of a debt;
* different periods of
prescription, by making Chapter III of The
Prescription Act, 1969
,
applicable to all debts:
AND RECOGNISING the need to
provide for transitional arrangements to ensure a smooth transition
between the various existing statutory
provisions ….and the
provisions of this Act;
AND BEARING IN MIND the limited
need, for legal or practical purposes, to retain certain provisions
of existing laws which provide
for-
*notice
periods that differ from the envisaged uniform notice period;
*periods of prescription that
differ from the periods of prescription prescribed by Chapter III of
the
Prescription Act, 1969
;’
(b)
Section 1(1)
in which ‘debt’ is defined to mean
‘
any
debt arising from any cause of action-
(a) which
arises from delictual, contractual or any other liability, including
a cause of action which relates to or arises from
any-
(i)
act performed under or in terms of any law; or
(ii)
omission to do anything which should have been done under or in
terms of
any law; and
(b) for which an organ of state
is liable for payment of damages, whether such debt became due before
or after the fixed date’
(c) Section1(2) and (3) which read as follows:
‘
(2)
This Act does not apply to any debt-
(a) which
has been extinguished by prescription before the fixed date; or
(b) which
has not been extinguished by prescription before the fixed date and
in respect of which any legal proceedings were instituted
before the
fixed date.
(3) Any
legal proceedings referred to in subsection (2) (b) must be continued
and concluded as if this Act had not been passed
.
(d) Section 2 , which reads as follows:
‘
(1)
The laws referred to in the Schedule are, as from the fixed date,
amended or
repealed to the extent set out in the third column of the Schedule.
(2)
Subject to section 3 and subsections (3) and (4), a debt which became
due-
(a) before
the fixed date, which has not been extinguished by prescription and
in respect of which legal proceedings were not instituted
before that
date; or
(b) after
the fixed date,
will be
extinguished by prescription as contemplated in Chapter III of the
Prescription Act, 1969 (Act 68 of 1969), read with the
provisions of
that Act relating thereto.
(3)
Subject to subsection (4), any period of prescription which was
applicable to any debt referred to in subsection (2) (a), before
the
fixed date, will no longer be applicable to such debt after the fixed
date.
(4) (a)
The expired portion of any period of prescription applicable to a
debt referred to in subsection (2) (a), must be deducted
from the
said period of prescription contemplated in Chapter III of the
Prescription Act, 1969
, read with the provisions of that Act relating
thereto, and the balance of the period of prescription so arrived at
will constitute
the new unexpired portion of prescription for such
debt, applicable as from the fixed date.
(b) If the
unexpired portion of the period of prescription of a debt referred to
in paragraph (a) will be completed within 12 months
after the fixed
date, that period of prescription must only be regarded as having
been completed 12 months after the fixed date’.
(e) Section 3 which reads as follows:
(1) No
legal proceedings for the recovery of a debt may be instituted
against an organ of state unless-
(a) 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; or
(b) the
organ of state in question has consented in writing to the
institution of that legal proceedings-
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements
set out in subsection (2).
(2) A
notice must-
(a) 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);
and
(b)
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
creditor.
(3) For
purposes of subsection (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 of state wilfully
prevented him or her or it from acquiring such
knowledge; and
(b) a debt
referred to in section 2 (2) (a), must be regarded as having
become due
on the fixed date.
(4) (a) If
an organ of state relies on a creditor's failure to serve a notice in
terms of subsection (2) (a), the creditor may apply
to a court having
jurisdiction for condonation of such failure.
(b) The
court may grant an application referred to in paragraph (a) if it is
satisfied that-
(i)
the debt has not been extinguished by prescription;
(ii) good
cause exists for the failure by the creditor; and
(iii) the
organ of state was not unreasonably prejudiced by the failure.
(c) If an
application is granted in terms of paragraph (b), the court may grant
leave to institute the legal proceedings in question,
on such
conditions regarding notice to the organ of state as the court may
deem appropriate.’
[7] The Act deals with legal proceedings
against organs of state for the recovery of debts. In doing so it
attempts to create uniformity
on two aspects. The first is the
requirement to give notice of a proposed action for the recovery of a
debt
3
and the second is the prescription of debts.
4
Speaking generally, this is achieved by repealing the laws dealing
with notice requirements, making a single requirement applicable
to
all debts and making the
Prescription Act
5
apply
to the prescription of all debts.
[8] The Act uses the word ‘prescription’
throughout to denote that debts have been extinguished. It is clear
that the
Act uses ‘prescription’ in a wide sense which
includes prescription properly so called and expiry periods.
Prescription
is governed by the
Prescription Act and
expiry periods
were and in some cases still are governed by various statutes. The
main difference between the two is that the
Prescription Act provides
for grounds which delay the commencement and completion of
prescription whereas expiry periods generally do not allow a
plaintiff
to rely on these grounds.
6
The wider sense is particularly apparent from
s2
which refers to
periods of prescription other than those prescribed by the
Prescription Act. In
this judgment I will follow the Act’s use
of the word ‘prescription’.
[9] ‘Debt’ and ‘organ of
state’ are defined in s1 of the Act. Nothing turns on the
latter definition in
this case because the respondents are sued as
heads of national departments, which are clearly organs of state. The
definition
of ‘debt’ is confusing. It speaks of a cause
of action which arises from a liability. This is putting the cart
before
the horse. As was stated by Trollip JA in
Evins
v Shield Insurance
7
:
‘”
Cause
of action” is ordinarily used to describe the factual basis,
the set of material facts, that begets the plaintiff's
legal right of
action and, complementarily, the dependant's “debt”, the
word used in the
Prescription Act. The
term, “cause of action”,
is commonly used in relation to pleadings or in statutes relating to
jurisdiction or requiring
prior written notification of a claim
before action thereon is commenced.’
[10] In citing the above quotation with
approval in
Duet and Magnum Financial
Services v Koster
8
Nugent JA held that a debt is the complement of a right and is better
described as a liability. Although both these two cases dealt
with
debt in the context of the
Prescription Act, what
is stated in them
is of general application. Accordingly, the definition of debt in the
Act would have read better if it had simply
stated that a debt was a
liability arising out of any cause of action. Nevertheless, in my
view, that is what the legislature intended
the first part of the
definition to mean.
[11] Para (a) of the definition is widely
worded and makes it clear that a debt is any liability whatsoever. It
is however followed
by para (b) and the question which arises is how
the two paragraphs relate to each other. They can be read either
disjunctively
or conjunctively. The paragraphs are linked by ‘and’
and not ‘or’. Ordinarily, paragraphs or phrases linked
by
‘and’ are read conjunctively and those by ‘or’
disjunctively. Accordingly, although the courts have
read “and’
to mean ‘or’ and
vice
versa
in appropriate circumstances,
there must be compelling reasons to change the words used by the
legislature.
9
[12] Using the ordinary meaning of the words in the definition
therefore, the two paragraphs must be read conjunctively. When that
is done, para (b) qualifies or limits the generality of (a) in two
ways. Firstly, it restricts debts to those which constitute
a
liability to pay damages and secondly, it restricts debts to those
where an organ of state is the debtor. On an ordinary reading
of the
definition it boils down to this. A debt is the liability of an organ
of state to pay damages, arising from any cause of
action
[13]In the
Kovacs Investments
case the
court came to the conclusion that the Act did not apply to a claim
for arrear rental and other charges due in terms of
a lease
agreement, by reading the two paragraphs of the definition of ‘debt’
in S 1 of the Act conjunctively. On the
other hand, in the
Nicor
case, whilst the court found that the Act did not apply to a
claim for an amount due in terms of a contract, it did so by applying
the ordinary and natural meaning of the definition, and also tested
that meaning against the context and purpose of the Act. The
ordinary
and natural meaning was found to be that para (b) of the definition
qualified the whole of para (a).
[14] It follows from what I have said that I
agree with the conclusion in the
Nicor
case on the ordinary
meaning of the definition of ’debt’ in the Act. I also
agree with the finding that para (b) of
the definition cannot be read
to qualify only sub-paras (i) and (ii) of para (a). In my view such a
reading would not make sense.
[15] The
Prescription Act does
not define ‘debt’ but that
term has been interpreted by our courts. The following has been
stated about the term:
‘
Volgens
die aanvaarde betekenis van die begrip slaan "'n skuld" op
'n verpligting om iets te doen (hetsy by wyse van betaling
of
lewering van 'n saak of dienste), of nie te doen nie. Dit is die een
pool van 'n verbintenis wat in die reël 'n vermoënsbestanddeel
en-verpligting omvat (
Joint
Liquidators of Glen Anil Development Corporation Ltd (in liquidation)
v Hill Samuel (SA) Ltd
1982
(1) SA 103
(A) te 110;
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981
(3) SA 340
(A) te 344;
De
Wet en Yeats Kontraktereg en Handelsreg 4de uitg
te
2).’
10
.
This is obviously far wider than the Act’s
definition of ‘debt’, and therefore incorporates
liabilities for damages,
liabilities for liquidated sums of money and
non-monetary liabilities. I shall refer to the latter two categories
of debts owed
by organs of state as non-damages debts or liabilities.
[16] I am also in agreement with what was
stated in the
Nicor
case on the broad purposes of the Act,
namely:
‘
From
the extracts of the preamble set out above there are three important
issues to note. Firstly, the State intends to respect,
protect,
promote and fulfil the rights in the Bill of Rights. Secondly, its
point of departure was that the provisions of Ch III
of the
Prescription Act 68 of 1969
were applicable to all debts. Finally,
insofar as it was necessary to limit the right of access to the
courts, such rights would
be limited only to the extent that it was
reasonable and justifiable to do so in an open, democratic society,
as required by s
36 of the Constitution.’
11
I would lay particular emphasis on the need to protect the right to
access to the courts enshrined in s34 of the Constitution.
[17] I also agree in general terms with what
was stated in that case about why the notice requirements of the Act
should only apply
to damages cases, namely, that the evidence in
these cases is more likely to depend on the memory of people than
documents and
so the defendant should be given timeous notice of
contemplated proceedings in order to be able to investigate the case.
However,
some damages cases may depend largely on documents. This
would happen where the claim is for damages arising from breach of a
written
contract. Conversely, a non-damages claim may depend almost
entirely on the memory of people where it is based on an oral
contract.
Nevertheless, generally speaking the traditional
justification for notice provisions is more necessary in damages
cases, particularly
delictual ones. This justification was expressed
as follows by Didcott J in
Mohlomi v
Minister of Defence
12
:
‘
The
conventional explanation for demanding prior notification of any
intention to sue such an organ of government is that, with
its
extensive activities and large staff which tends to shift, it needs
the opportunity to investigate claims laid against it,
to consider
them responsibly and to decide, before getting embroiled in
litigation at public expense, whether it ought to accept,
reject or
endeavour to settle them.’
[18] Finally, subject to one qualification mentioned below, I agree
that the Act as a whole, supports the ordinary meaning of the
definition. I would add that there are indications which point to
debts being restricted to monetary claims as opposed to including
non-monetary ones. Firstly, in the long title, the preamble, the
definition of creditor in s1 and in s3(1) the expressions ‘recovery
of a debt’ and ‘recovery of debts’ are used.
Secondly, ss(4) of s1 which I must say seems rather out of place
in a
definition section, speaks of legal proceedings being instituted by
service of any process in which is claimed ‘payment
of a debt’.
[19] However, in my view that is not the end of the matter. I say
this because the ordinary meaning of debt leads to a possible
anomaly
in relation to the effect of the Act on some of the debts which are
not included in the Act’s definition of debt,
that is,
non-damages debts.
[20] There is no uncertainty about the Act’s impact on debts as
defined in the Act. The Act deals expressly with them:
(a) Those which have prescribed or in respect
of which action has been instituted before the Act comes into effect
are not affected
by the Act
13
(b) Those which arise after the Act has come
into effect, will prescribe in terms of Chapter lll of the
Prescription Act, read
with the provisions of that act relating
thereto and
s3
’s notice requirements apply to these debts.
14
(c) Those in respect of which the prescription
period has commenced to run but has not yet been completed, will
prescribe after
the expiry of the relevant period prescribed by the
Prescription Act, but
no earlier than one year after the Act came
into effect, and s3’s notice requirements apply to these
debts.
15
[21] What the Act does not deal with in detail
is non-damages debts owed by organa of state. The prescription of
some of these was
governed by various laws which were repealed by the
Act.
16
The prescription of the rest was either governed by laws which were
not repealed or by the
Prescription Act.
17
The
Act left the
Prescription Act unscathed
and so any non-damages
debts governed by that act or the unrepealed laws before the Act came
into operation were unaffected by
the Act. However, the Act repealed
some of the ‘prescription’ laws. Some of these repealed
laws, as will be seen, dealt
with both damages and non-damages debts.
However, in repealing these laws the Act only dealt with the
consequences of that repeal
on damages debts. As a result there is
uncertainty about the effect of the repeal of these laws on those
non-damages debts which
were previously governed by them.
[22] Non-damages debts which had prescribed
before the Act came into effect present no difficulty. They remain
unaffected by the
Act. Non-damages debts which arise after the Act
came into effect also present no problems. They prescribe in terms of
the
Prescription Act.
[23
] The difficulty arises in relation to non-damages debts which
were partially prescribed when the Act came into effect, and which
were governed by one of the laws repealed by the Act. An example of
these is
s26
of The
Intelligence Services Act, 38 of 1994
, ss(1) of
which reads :
‘
(1)
Any
civil proceedings against the State or any person in respect of
anything done in pursuance of this Act, shall be instituted
within
three years after becoming aware that the cause of action arose, and
notice in writing of any such proceedings and of the
cause thereof
shall be given to the defendant not less than one month before it is
instituted
.’
[24] As I have mentioned the Act merely repeals
these governing laws and does not provide for the consequences of
that repeal, namely,
what, if any, notices must be given and what
prescription periods apply to those debts. As a result the rules of
interpretation
of statutes have to be utilised. In
Transnet
v Ngcezula
18
at issue was the effect of the repeal of The South African Transport
Services Act, 65 of 1981 with effect from 1 April 1990. S
64 (3) of
that act required claimants against SATS to lodge a claim within
three months of it becoming due on pain of losing the
right to
enforce the claim. However, the subsection provided for a court to
grant leave to lodge the claim late. The repealing
act, Act 9 of 1989
did not deal with the consequences of the repeal and contained no
counterpart to S 64 (3) of the repealed act.
The respondent was
injured on 15 August 1989 and held SATS liable for her damages. A
claim was lodged on 7 March 1990, well out
of time.
[25] The Appellate Division held that the primary consideration was
what the intention of the legislature was in repealing the
legislation in question and when the wording of the repealing act
offers no guidance, the answer is to be found in S 12 (2) (c)
of the
Interpretation Act, 33 of 1957. The relevant parts of s12 of that act
provide as follows:-
‘
12
(1)
Where
a law repeals and re-enacts with or without modifications, any
provision of a former law, references in any other law to the
provision so repealed shall, unless the contrary intention appears,
be construed as references to the provision so re-enacted.
(2) Where
a law repeals any other law, then unless the contrary intention
appears, the repeal shall not-
…
..
(c) affect
any right, privilege, obligation or liability acquired, accrued or
incurred under any law so repealed; or
…
.
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
.’
The court went on to hold that S 12 (2) had the
effect of preserving the status quo and that the rights of both the
claimant and
the defendant survived the repeal of S 64 (3). This in
turn meant that whilst the respondent’s right to sue was still
dependant
on giving timely prior notice of the intention to do so,
the court still had the right to allow late notice.
[26] In my view the legislation dealt with in
the
Transnet
case is on all fours with that in the present one, and so the effect
of this is that unless a contrary intention appears from the
Act, the
repealed legislation like
s26(1)
of the
Intelligence Services Act
continued
to apply to non-damages debts, both in relation to
prescription and pre-litigation notices. This would lead to the
anomaly that
different prescription periods applied to damages claims
and non-damages claims, even against the same defendant, and even
where
the two categories were previously governed by the same
legislation. This would not be entirely unprecedented because a
similar
situation was possible in relation to provincial departments
and municipalities prior to the repeal of The Limitation of Legal
Proceedings (Provincial and Local Authorities) Act, 94 of 1970 by the
Act
19
.
However that would have been in relation to delictual claims on the
one hand and all other claims on the other, because Act 94
of 1970
only applied to delictual claims. What is now possible is that
different notice requirements could apply to a claim for
damages
arising from breach of contract and one for specific performance of
the same contract. Secondly, the provisions which would
constitute a
greater erosion of a plaintiff’s constitutional right to access
to the courts would apply to cases in respect
of which an organ of
state is less in need of protection, namely, non-damages claims.
Finally, and most importantly, it would,
on the strength of judgments
like
Mohlomi v Minister of Defence
20
and
Brummer v Minister for Social
Developmen
21
,
possibly mean the retention of
unconstitutional legislation. An example is s 26(1) of the
Intelligence Services, which, like s113
of the Defence Act, which was
struck down in the
Mohlomi
case, not only prescribes a notice period, but makes no provision for
condonation.
22
[27] It seems to me that there are two possible
ways in which this consequence could be avoided. Firstly, the two
paragraphs of
the definition of debt could be read disjunctively.
This would widen the definition to include non-damages debts and ss2
and 3
of the Act would also apply to these debts. Whilst this
interpretation would remove an unjust and possibly unconstitutional
result
of the other interpretation and could therefore be justified
23
,
there is a compelling factor weighing against this interpretation.
That is that it would result in a far greater erosion of
constitutional
rights than the ordinary meaning would, by making the
Act’s notice requirements applicable to non-damages debts.
Although
the failure to give timeous notice is not fatal to a
plaintiff, condonation is not for the asking.
24
In addition, as I have mentioned there are strong indications in the
rest of the Act which point to ‘debt’ not having
an
extended meaning. Finally, this interpretation would mean that
paragraph (a) would not make it clear that a debt was something
owed
by an organ of state. As a result, the definition would not make
sense. I conclude therefore that a disjunctive interpretation
of the
definition is not justified.
[28]
The second possibility is to find that ‘the contrary intention
‘ does in fact appear from the Act read with the
Constitution,
namely, that what was intended was that the repealed laws should no
longer apply but that the provisions of ss2 and
3 of the Act should
apply to the (non-damages) debts in question in the same way that
they apply to the corresponding (damages)
debts. There are
indications in the Act which suggest that such a consequence was what
was intended by the legislature. For example,
the need to harmonise
and standardise the law relating to prescription and notice periods
in relation to claims against organs
of state. Secondly, and more
importantly, to allow the offensive provisions to remain in force
would limit the right enshrined
in s34 of the Constitution, and these
provisions may well be unconstitutional. I might add that the last
paragraph of the preamble
does not seem to apply to the repealed laws
but to ones which were not repealed
25
.
[29] On the other hand, the Act is not
consistent in its attempts to protect the s 34 constitutional right.
In certain cases that
right has been partially sacrificed in the
interests of standardisation. For example, prior to the Act, notice
requirements in
respect of claims against national government
departments were the exception and not the rule, but the Act has made
them applicable
to all departments, albeit only in respect of damages
claims. Secondly, one is not dealing here with a case of the
legislature
introducing potentially unconstitutional legislation but
of it allowing that legislation to remain on the statute book. This
means
that those affected by the legislation are in no worse position
than they were before. Thirdly, the legislation affects a minority
of
litigants because of the limited number of laws involved and because
it only affects claims which arose in the transitional
period between
the old and new orders. Finally, because the debts in question arose
in a fixed period in the past, the prejudicial
effect of the repealed
laws will last for a limited period.
[30] Weighing up the factors I have mentioned, I am of the view that
the repealed laws should not apply to the non-damages claims
in
question and as a result the potential anomaly does not arise.
However, what is most important for this case is that it is not
necessary or possible to deviate from the ordinary meaning of the
definition of debt in order to avoid the unacceptable consequences
in
question.
[31] The applicant’s counsel argued that
the decisions in the
Nicor
and
Kovacs Investments
cases were wrong. This argument was based principally on
Holeni
v Land Bank
26
.
It was suggested that it would appear from the judgment in that case
that had the court found that the Land Bank was an organ
of state,
the Act would have applied to the case even if the claim concerned
was not one for damages. That case did not deal with
the Act at all,
but with The
Prescription Act. Furthermore
the claim in question was
not one against the Bank but one by the Bank for the recovery of a
loan. At issue in that case was whether
or not the Land Bank was part
of the State for purposes of the
Prescription Act. The
case is
therefore of no relevance to this case.
[32] Alternatively counsel argued that condonation should be granted
as a precaution in case the applicant decided at some stage
to
introduce alternative claims based on enrichment. I do not agree.
Even if such an amendment were to be made, the enrichment
claims
would not be hit by S 3 of the Act because an enrichment claim is not
one for damages.
[33] I find therefore that the ordinary meaning
of the definition of debt is the correct one and I therefore agree
with the decisions
in the
Nicor
and
Kovacs Investments
cases.
[34] As a result, I find that because the applicant’s claims
are not damages claims, the Act does not apply to them and it
is
unnecessary for the applicant to apply for condonation in terms of S
3 of the Act.
[35]
In the light of this conclusion, the applicant is not entitled to the
substantive relief it seeks. However, the respondents
did not oppose
the application. It follows therefore that the respondents are not
entitled to a costs order. Instead, there should
be no order for
costs, which means that the parties will bear their own costs.
[36] I accordingly make the following order:-
1. The application is dismissed;
There will be no costs order.
____________________
RALL
AJ
Date
of Judgment: 22 June 2011
Appearance
for Applicant: K Naidu instructed by Mahomed Khan and Associates.
Appearance
for Respondent: None
Thabani Zulu & Company,
judgment 3.6.11
1
2010
(3) SA 90
(NWM)
2
2010
(6) SA 645
(GNP)
3
S3
4
S2
5
Act
68 of 1969
6
Minister
of Safety and Security v Molutsi
1996 (4) SA 72
(A) at 95F-H
7
1980
(2) 814 (A) at 825F
8
2010
(4) SA 499
(SCA) at 507A-B
9
Ngcobo
and Ors v Salimba CC
1999 (2) SA 1057
(SCA) at 1067J-1068E
10
Oertel
v Direkteur van Plaaslike Bestuur
1983 (1) SA 354
(A) at 370B-C
11
Para
24
12
[1996] ZACC 20
;
1997
(1) SA 124
(CC) at128 D-E
13
S1(2)
and (3)
14
S(2)(2)(b)
15
S2(2)(2)(a),
(3) and(4)
16
S2(1)
read with the schedule
17
S16
of the Prescription Act
18
[1994] ZASCA 192
;
1995
(3) SA 538
(A)
19
And
subject of course to the finding of unconstitutionality in Moise v
Greater Germiston TLC
[2001] ZACC 21
;
2001 (4) SA 491
(CC)
20
[1996] ZACC 20
;
1997
(1) SA 124
(CC)
21
2009
(6) SA 323
(CC)
22
Other
examples are s32A of the Black Administration Act,38 of 1927, ss343
and 344(4) of the Merchant Shipping Act, 57 of 1951
and s68(4) of
the Mental Health Act, 18 of 1973.
23
Ngcobo’s
case at 1068C-D
24
Minister
of Agriculture v CJ Rance
2010 (4) SA 109
(SCA) particularly paras
35 and 36
25
See
Erasmus, Superior Court Practice
E7-16 to E7-37 for a list of
these laws
26
2009
(4) SA 437
(SCA)