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
>>
2011
>>
[2011] ZAECMHC 6
|
|
Msindwana v Kili and Others (439/98) [2011] ZAECMHC 6 (6 May 2011)
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN CAPE
HIGH COURT, MTHATHA)
Case No: 439/98
Heard
02/02/2011
Delivered:
06/05/2011
In the matter between
:
NONKULULEKO JUDITH
MSINDWANA
…...............................
PLAINTIFF
VERSUS
NONTSASA KILI AND 11
OTHERS
…................................
DEFENDANTS
JUDGMENT
MJALI
J:
The plaintiff instituted
an action for payment of a sum of R1000 000.00 for damages arising
from certain defamatory statements
alleged to have been made by the
defendants at various meetings and in the course of their duties
either as employees of the
Department of Education, Parents Teachers
and Students Association, Education Transitional Task Team, Conflict
Management Team,
Internal Management Team or Commission of Enquiry.
In her particulars of claim the plaintiff states that as a result of
the actions
of the defendants she was removed from the school as
principal and assumed duty at the Department of Education offices in
an
undisclosed capacity. That according to her has resulted in her
not being considered for promotion to higher positions and loss
of
better income opportunities. The alleged defamatory statements were
made during 1995 but the plaintiff only instituted these
legal
proceedings in May 1998.
It is not in issue that
the envisaged claim for damages is a claim for the recovery of “a
debt” brought against the
body or persons representing the
Department of Education, an organ of State.
The institution of legal
proceedings in 1998 on a cause of action that occurred in 1995
prompted the filing of a special plea
by the defendants in terms of
which they asserted that the plaintiff’s failure to institute
legal proceedings within the
prescribed period was fatal to its
claim, and they sought an order that the claim be dismissed with
costs. The special plea was
formulated as follows.
“
In
terms of the provisions of sub-section (2) of section 67 of the
Republic of Transkei Constitution Act No. 15 of 1976 the plaintiff
was obliged to institute the proceedings within twelve months from
the date on which the cause of action arose.”
On a proper reading,
sub-section (2) of section 67 of the Republic of Transkei
Constitution Act No. 15 of 1976 not only requires
the institution of
proceedings within twelve months but in addition requires that
notice in writing of the intention to bring
such proceedings and the
cause thereof be given to every defendant at least one month before
the commencement of the proceedings.
Mr Gagela, counsel for the
defendants argued that the plaintiff’s claim had expired as it
was not instituted within the
period of twelve months as required by
the now repealed Republic of Transkei Constitution Act
No. 15 of
1976
as well as the subsequent Acts containing similar
provisions, namely the Public Service Act No. 103 of 1994 and The
Institution of Legal Proceedings Against Certain Organs of State Act
No. 40 of 2002
.
Coupled with the special
plea there was a prayer that the special plea be heard separately
from the merits. The plaintiff opposed
the special plea on the
grounds that the Act relied on by the defendants was repealed and
that the cause of action arose in the
New South Africa. The
defendants then sought to abandon the special plea and proposed to
deal with the merits.
In view of the fact that
the issue raised in the special plea constituted a legal point the
court
mero motu
required that the parties deal with it. This
is an
a fortiori
situation of the one described as follows by
Ngcobo J in
Cusa v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA 204
(CC) [also reported at
[2008] ZACC 15
;
2009 (1) BCLR 1
(CC) – Ed] at paragraph
[68]:
“
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the
law is, a
court is not only entitled, but is in fact also obliged, mero motu,
to raise the point of law and require the parties
to deal therewith.
Otherwise, the result would be a decision premised on an incorrect
application of the law. That would infringe
the principle of
legality.”
Mr Gagela contended that
although the Transkei Constitution Act No.15 of 1976 was repealed in
toto by the Interim Constitution
in April 1994, the Public Service
Act No. 103 of 1994 which came into operation on 3 June 1994
contained a similar provision.
In terms of section 39 (2) of that
Act no action against the state shall commence after the expiry of
12 months unless notice
in writing of the intention to bring such
proceedings and the cause thereof has been given to every defendant
at least one month
before the commencement of the proceedings.
I
pause to mention that the Interim Constitution makes no mention of
the repeal of the Republic of
Transkei
Constitution Act No. 15 of 1976. Instead section 230 of the interim
Constitution repealed laws specified in Schedule
7 that accorded the
TBVC states ―independent status, including the Republic of
Transkei Constitution Act No
48
of 1963
and the Status
of the Transkei Act. Dealing with a similar situation the
Constitutional Court gave guidance in
The
State versus Kholekile Witness Thunzi And Siyabulela Mlonzi With
Minister for Justice And Constitutional Development
Case
CCT 81/09
[2010] ZACC 12
tha
t
the reference in the interim Constitution to the Transkei
Constitution Act
No
48 of 1963 seems
to be an error, since this Act was repealed
in
toto
and
replaced by the Republic of Transkei Constitution Act 15 of 1976.
At
the time the cause of action arose as well as at the time of the
institution of the proceedings in this matter section 39 of
the
Public Service Act No. 103 of 1994 which contained provisions
similar to section 67 (2) of the
Republic
of Transkei Constitution Act 15 of 1976 was in force.
1
That means that
either way the plaintiff was obliged not only to institute
proceedings against the defendants before the expiry
of a period of
twelve months but also to first issue notices of intended legal
proceedings to the defendants.
Relying on the said
provisions Mr. Gagela submitted that the plaintiff failed to issue
the required notice to the defendants.
He argued further that no
application has been made for the condonation for the late
institution of proceedings as well as the
failure to notify the
defendants as required by the Act. This is a fact that Mr
Sotshongaye, counsel for the plaintiff was constrained
to concede
but nevertheless argued for the dismissal of the special plea as the
granting thereof would result in non-suiting
the plaintiff. In my
view there is substance in Mr. Gagela’s argument.
I
turn now to the issue of non- suiting the plaintiff. Whilst it is
trite that parties have a right to have justiciable disputes
settled
in a court of law, it is equally trite that such right comes with an
obligation that legislative prescripts as well as
rules of procedure
must be complied with. Failure to do so could after consideration of
the relevant factors result in an application
for condonation being
refused. Our courts have on numerous occasions pronounced on the
fact that
rules are not merely for the convenience of the
parties and the court, but are designed to enhance the efficacy of
the courts
and the overall administration of justice. Compliance
with the rules is therefore not a matter of choice but imperative.
See:
Star Marine Yacht Services v Nortier
1993 (1) SA 120
(SE) at 121D–E. Coetzee J, in
Reitmann v Jansen van
Rensburg
1984 (2) SA 174
(W) at 179H, said:
“
Rules
are made to be followed and Rules are there so that rights and duties
flow, in the event of non-compliance legal results flow.”
Statutory
requirements of notice as well as the time within which proceedings
against organs of the state must be instituted have
long been
familiar features of South Africa’s legal landscape. In
Mohlomi v
Minister of Defence
[1996] ZACC 23
;
1996
(12) BCLR 1559
(CC)
the
following is stated,
“
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”.
In
this matter there is neither an application for condonation for the
inordinate delay nor have the reasons thereof been explained
to
enable this court to exercise its discretion. In the absence of any
information it cannot be said that good cause exists for
the
inordinate delay as well as the failure by the plaintiff to serve
the statutory notice. It cannot be assumed that the defendants
will
not be unreasonably prejudiced by such failure.
The plaintiff
flouted the legislative prescripts as well as the rules of court at
its peril. I am in the circumstances unable
to condone the
plaintiff’s failure to institute action within the prescribed
period.
Turn now to the issue of
costs. An order for cost is a discretion by the court, which
discretion must be exercised judicially,
having regard to what is
fair to both parties. The general rule is that a successful party
should be entitled to costs unless
there are circumstances which
should disentitle such a party to an order for costs. I can see no
reason why I should deviate
from the norm. Costs must follow the
results.
In the result the
following order is made:
The special plea is
granted. The plaintiff is to pay costs.
_________________
GNZ MJALI
JUDGE OF THE
HIGH COURT,
MTHATHA
.
On behalf of the
Plaintiff
Adv. Sotshongaye
Instructed by
Sangoni Incorpoted
On behalf of the
Respondents
Adv. Gagela
Instructed by
N. Msindwana &
Company
1
It
came into operation in June 1994 and was only repealed by the
Institution of Legal Proceedings Against Certain Organs of State Act
No. 40 of 2002
which contains similar provisions. That Act came into
operation on 28 November 2002.