Tshisa v Premier of the Free State and Another (A6/2009) [2009] ZAFSHC 119; 2010 (2) SA 153 (FB) (19 November 2009)

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[2009] ZAFSHC 119
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Tshisa v Premier of the Free State and Another (A6/2009) [2009] ZAFSHC 119; 2010 (2) SA 153 (FB) (19 November 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A6/2009
In
the
matter
between:-
M
A TSHISA
Appellant
and
PREMIER
OF THE FREE STATE
1
st
Respondent
N
FENI
2
nd
Respondent
_____________________________________________________
CORAM:
H.M.
MUSI, JP
et
J.Y.
CLAASEN, AJ
_____________________________________________________
HEARD
ON:
14
SEPTEMBER 2009
_____________________________________________________
DELIVERED
ON:
19
NOVEMBER 2009
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
[1]
This
is an appeal from a judgment of the magistrates’ court for the
district of Bothaville, in terms of which the magistrate dismissed

with costs an application for condonation brought by the appellant in
terms of section 3(4) of the Institution of Legal Proceedings
Against
Certain Organs of State Act, 40 of 2002 (the Act).
[2] The
history of the matter is somewhat chequered. The appellant had sued
the Premier of the Free State (the first respondent)
for damages he
sustained as a result of damage to his minibus taxi in a motor
collision involving his motor vehicle and a motor
vehicle belonging
to the first respondent which was at the time driven by Ms N. Feni
(the second respondent). The latter had been
in the employ of the
first respondent at the time and was acting within the course of her
employment as such. After service of
summons, the first respondent
entered an appearance to defend and thereafter the parties reached a
settlement in terms of which
the first respondent would settle the
appellant’s full claim together with costs. Whereas the settlement
was reached in March
2007, the actual payment was received only a
year later in May 2008, after an extensive exchange of correspondence
between the
attorneys of the respective parties. The delay was
clearly occasioned by the failure of the first respondent’s
representatives
and employees to get proper authorisation for the
payment.
[3] The
appellant then adopted the attitude that due to the long delay in
payment of the agreed amount, he had suffered loss of
income in that
he had been unable to repair his minibus taxi timeously and could not
run his business for the period of the delay.
His attorneys then
directed a notice in terms of section 3(2) of the Act to the first
respondent (in fact it was addressed to
the Minister of Health)
communicating his intention to institute a fresh action for loss of
income based on the same cause of action
as the settled and finalised
claim for damages. Since the six months’ period within which such
notice should have been issued
had elapsed, the letter also requested
the first respondent to consent to the late institution of the
action. I should say that
this should really have been a request for
consent in terms of section 3(1)(b) but the letter concerned speaks
of condonation in
terms of section 3(4)(a).
[4] The
request for consent was rejected and the appellant then launched an
application for condonation in terms of section 3(4)
of the Act in
the same magistrates’ court under case number 783/2008. At the
same time the appellant issued summons under the
same case number for
the loss of income claim. In due course the application and the
summons were served on the respondents.
The respondents gave notice
of their intention to oppose the application as well as an appearance
to defend the action.
[5] In
opposing the application the respondents raised a point
in
limine
,
the essence of which was that the magistrates’ court had no
jurisdiction to hear such application. In support of this the
respondents’ legal representative referred to the judgment of the
full bench of the Western Cape High Court in the matter of
THE
MINISTER OF SAFETY AND SECURITY AND ANOTHER v BOSMAN
,
case number A725/2007 delivered on 4 June 2008. Therein it was held
that the magistrates’ court, being a creature of statute,
can only
entertain such applications as are authorised by the Magistrates'
Court Act, 32 of 1944, as amended or the Rules promulgated
thereunder
or some other Statute. It was held that the application under
section 3(4) is the type of application not authorised
by the
Magistrates’ Court Act or the Rules. Nor could the magistrates’
power to entertain such application be implied in the
Act.
[6] The
magistrate hearing the matter ruled that he was bound by the decision
aforesaid and accordingly that he had no jurisdiction
to hear the
application. He dismissed the application with costs. It is against
this decision that the appeal is directed.
[7] Before
us Mr. Gilliland, for the appellant, contended that the
BOSMAN
judgment is distinguishable on the facts on the basis that there the
appellant had not issued summons when she approached the magistrates’

court for condonation. He contended that in this case the
application was incidental to the matter before the magistrates’
court and that that court could adjudicate it. Mr. Gilliland also
submitted that
BOSMAN
was wrongly decided and urged us not to follow it. His argument in
this regard rested on the following premises:
7.1
Where
action has already been instituted in a magistrates’ court and such
court has jurisdiction in the cause of action, it will
be convenient
and in the interest of justice that the same court be clothed with
authority to hear the condonation application.
7.2
A
proper interpretation of the words “to a court having jurisdiction”
appearing in section 3(4)(a) of the Act, is that the
condonation
application should be heard by the court having jurisdiction in the
principal case.
7.3
Section
37(2) of the Magistrates’ Court Act gives the magistrates’ court
the necessary jurisdiction to hear a condonation application
as such
application is merely ancillary to the main action before it. Mr.
Gilliland handed up a copy of an order made by the North
Gauteng High
Court under case number 23045/2006 in terms of which the court
transferred a similar application to a magistrates’
court. He
contended that this shows that the North Gauteng High Court accepted
that the magistrates’ court does have jurisdiction
to hear such
application.
[8] Mr.
Mene, for the respondents, referred to the doctrine of
stare
decisis
in terms of which the lower courts are bound by decisions of the
superior courts. He submitted that the court
a
quo
was
correct in following the
BOSMAN
judgment. He argued that the
BOSMAN
judgment was based on settled legal principles and that it was
correctly decided. He urged us to follow it.
[9] It
is appropriate to dispose of the contentions, firstly, around the
order of the North Gauteng High Court referred to above
and,
secondly, section 37(2) of the Magistrates’ Court Act. The order
of the North Gauteng High Court reads in part as follows:
“
Dat die saak
oorgeplaas word na die betrokke landdroshof wat jurisdiksie het in
terme van reël 39(2
2).”
The
court here was acting in terms of
rule
39(22) of the Uniform Rules. This was clearly an order pursuant to a
written request of the parties prior to the commencement
of trial.
The parties themselves consented to the jurisdiction of the
magistrates’ court. The point in issue herein does not
seem to
have been canvassed at all.
[10] Section
37(2) of the Magistrates’ Court Act reads as follows:
“
Where the amount
claimed or other relief sought is within the jurisdiction, such
jurisdiction shall not be ousted merely because
it is necessary for
the court, in order to arrive at a decision, to give a finding upon a
matter beyond the jurisdiction.”
A
reading of this section makes it clear that a finding on the matter
that is beyond the jurisdiction of the court must be necessary
in
order for the
court
to reach a decision on the main matter before it, which is within the
jurisdiction. The cases cited in Jones & Buckle,
The
Civil Practice of the Magistrates’ Court in South Africa
,
Vol 1 under a discussion of section 37(2) illustrate the point. It
will not be necessary to make a finding on the condonation

application in order for the magistrates’ court to reach a decision
on the appellant’s loss of income claim. What section
37(2)
envisages is an issue that is central to a determination of the
merits of the case before the court but which is beyond the

jurisdiction.
[11] It
is apposite to refer to the following passages in the
BOSMAN
judgment which appear to me to correctly reflect the legal position
regarding the jurisdiction of the magistrates’ court generally
and
in particular its power in relation to application proceedings:
“
[10] Our law is
replete with case law and legal authority that the jurisdiction of
Magistrates’ Courts is established in the statute
under which the
Courts are constituted. This applies not only to the empowering
sections of the Magistrates’ Court Act but also
to the Rules. A
magistrate cannot exercise powers which are not expressly stated in
the Act or the Rules.
There
may be instances where authority may be implied since it has been
held that the purpose of an Act is not to be defeated because
the
ancillary powers which are necessary to enforce a judgment have not
been especially mentioned.
See,
Sibiya
v Minister of Police
1979 (1) 333 TPD at 337 C – D;
Abarder
v Astral Operations Ltd t/a County Fair
2007 (2) SA 184
CPD at D – E;
Jones
& Buckle
,
The
Civil Practice of the Magistrates’ Courts of South Africa 9 ed Vol
2 at 55-2;
Eckard’s
Principles of Civil Procedure in the Magistrates’ Courts 5 ed at
42-45; Civil Procedure in the Magistrates’ Courts, Com 6-3
and
further (Issue 19], by
LTC
Harms
.
(my emphasis)
[11] In my view,
the correct position in our law is that, generally speaking,
application procedures in the lower courts are permissible
only in
those instances sanctioned by the Act or the Rules, or where an act
makes such a procedure permissible.
Jones
& Buckle
,
supra
at
55-2
,
and Eckard,
supra
at
44
,
clearly and correctly set out the sections and rules which permit the
procedure by way of application.”
I have
highlighted
the third sentence in paragraph [10] of the quotation because I think
it is significant for purposes of this judgment.
[12] It
seems to me that the answer to the question whether the provisions of
the Act impliedly empowers the magistrates’ court
to hear an
application for condonation in terms of section 3(4) is to be found
in the interpretation of sub-section 4(a) thereof
in the context of
the purpose of the Act as appears from the preamble and taking into
account the background against which the
Act was introduced. The
sub-section reads as follows:
“
(
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.” (my emphasis)
The
highlighted words are critical. The question is which court did the
Legislature have in mind? It will be noted that the word
“court”
is not defined in the Act in the sense that no indication is given
whether it is reference to a magistrate’s court
or high court and
this may be significant. The question is whether the word “court”
in the sub-section includes a magistrates’
court.
[13]
It
is important to briefly sketch the background against which the Act
was introduced. Its enactment can rightly be regarded
as the
Legislature’s response to the criticism that the courts had
levelled against previous, similar statutory provisions that

prescribed notice periods and time frames for institution of legal
proceedings against certain organs of state for the recovery
of debt.
Some of these provisions have been repealed or amended by the Act,
as can be seen from its preamble. One such statutory
enactment is
the Limitation of Legal Proceedings (Provincial and Local
Authorities) Act 94 of 1970, which applied to bodies like
the first
respondent herein. Section 2(1)(a) thereof prescribed a limited
period of 90 days within which a creditor had to notify
the relevant
organ of State of the intended proceedings, failing which the
proceedings could not be instituted. The section was
declared
unconstitutional in
MOISE
v GREATER GERMISTON TRANSITIONAL LOCAL COUNCIL: MINISTER OF JUSTICE
AND CONSTITUTIONAL DEVELOPMENT INTERVENING (WOMEN'S LEGAL
CENTRE as
AMICUS CURIAE)
[2001] ZACC 21
;
2001 (4) SA 491
(CC). It was pointed out that although it was open
to a litigant to approach the court for condonation, nonetheless the
provision
remained a real obstacle to a litigant seeking the
assistance of the court. In a nutshell, the section was found to be
in conflict
with section 34 of the Constitution in that it
unjustifiably limited the right of access to the courts. A similar
provision in
the Defence Act, 44 of 1957 was found, on similar
grounds, to be unconstitutional in
MOHLOMI
v MINISTER OF DEFENCE
[1996] ZACC 20
;
1997 (1) SA 124
(CC).
[14] Quite
clearly the Act was meant to avoid the pitfalls of the previous
legislation by making it less onerous for prospective
litigants to
have their disputes resolved by the courts. In my view, it is only
proper and logical that a court interpreting section
3(4)(a) should
be mindful of the above background and interpret it in the light of
section 34 of the Constitution.
[15] The
purpose of the Act is 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 the notice
requirements in connection with the institution of legal proceedings

against certain organs of state in respect of the recovery of
debt.....”. Now it is a fact that magistrates’ courts have
jurisdiction to adjudicate on claims against organs of state for the
recovery of debt and have always adjudicated such claims.
Surely
Parliament was fully aware of this and must have intended that the
provisions of the Act would apply to all the courts that
have
jurisdiction over such claims. Therefore, where section 3(4)(a) says
that a creditor may apply to a court having jurisdiction,
the
Legislature must have intended to mean any court having jurisdiction
over the main claim. That would include the magistrates’
court.
[16]
The
above conclusion is fortified by the decision in
MINISTER
OF SAFETY AND SECURITY v DE WITT
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) to the effect that the application for
condonation in terms of section 3(4) is no prerequisite for the
institution of action;
which means that a creditor may issue and
serve summons against an organ of state even when he/she has not
issued a notice in terms
of section 3(1) read with sub-section 2(a).
The matter was put as follows at p. 461 F:
“
[10] In my view,
the argument loses sight of the purpose of condonation: it is to
allow the action to proceed despite the fact that
the peremptory
provisions of section 3(1) have not been complied with. Section 3
must be read as a whole.”
This
statement highlights the fact that a condonation application is
something extraneous to the subject matter of dispute before
the
court. Reference to “the action” that condonation would allow to
proceed can only be reference to the matter before the
court over
which it has jurisdiction. The “court having jurisdiction” in
section 3(4)
(a)
clearly refers to the court having jurisdiction over the cause of
action. If that court is a magistrates’ court then surely
it
should and must have jurisdiction to hear the condonation
application.
[1
7] A
contrary construction would, as Mr. Gilliland submitted, correctly,
in my view, have absurd results. Imagine a person seeking
R5 000,00
compensation from a municipality for injuries sustained as a result
of having fallen into a manhole. Having issued summons
in the
magistrates’ court, the municipality raises the objection that
he/she has not issued a notice in terms of section 3(2)(a).
Could
the litigant be expected to suspend the action and go to the High
Court in order to seek condonation? He/she may simply
not have the
funds for such a venture and, moreover, the costs of High Court
litigation may far exceed the amount of the claim.
And what about
the waste of time and inconvenience of shuttling between the two
courts? It could quite easily amount to a negation
of the right of
access to the courts.
[18] In
the instant case the appellant issued and served summons at the same
time that he issued and served the condonation application.
When the
application was heard the principal claim was pending before the same
court. The latter court was therefore the court
having jurisdiction
in the cause of action and was competent to hear the application in
terms of section 3(4). I refrain from
commenting on the prospects on
success of such application, for that is a matter that was not
canvassed in this appeal and over
which the magistrate’s court
would have to decide.
[19] The
following order is granted:
(a) The
appeal is upheld with costs;
(b) The
judgment of the court
a
quo
is set aside and replaced with the following:
1. The
point
in
limine
is dismissed with costs.
___________
_
H.M.
MUSI, J
P
I
concur.
________________
J.Y. CLAASEN, AJ
On
behalf
of appellant: Adv. J.G. Gilliland
Instructed
by:
Quinton
Grimbeek Attorneys
BLOEMFONTEIN
On
behalf of
respondents: Adv.
B.S. Mene
Instructed
by:
State
Attorney
BLOEMFONTEIN
/sp