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[2008] ZAFSHC 38
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Mogopodi v Member of the Executive Council of the Free State (122/2008) [2008] ZAFSHC 38 (13 March 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 122/2008
In
the case between:
LEBOGANG
GODFREY MOGOPODI
Applicant
and
THE
MEMBE OF THE EXECUTIVE COUNCIL
OF
THE FREE STATE
Respondent
JUDGMENT:
EBRAHIM, J
_____________________________________________________
HEARD
ON:
8
FEBRUARY 2008
_____________________________________________________
DELIVERED
ON:
13 MARCH
2008
[1]
At the heart of this opposed application for condonation for non
compliance with the provisions of section 3(2)(a) of the Institution
of Legal
Proceedings
against Certain Organs of State Acts 2002, (Act 40 of 2002) lies the
controversy surrounding the question of the employment
of the
applicant
by the respondent at Adult Based Education Training Centres known as
Remogo 2 and Remogo 3. The applicant has instituted
an
action
in this court for payment of remuneration which he claims is owed to
him by the respondent in terms of an alleged agreement
of
employment
which he entered into with the respondent in or about February 2003
to perform management and administrative functions
at the said
training
centres.
[2]
Respondent in its plea in the main action has resisted the
applicant’s claims for remuneration on the ground,
inter
alia
, that it has not received
proper
notice in terms of the applicable statute, namely section 3 of Act 40
of 2002. Central to this application is the applicant’s
contention that on
the
12 September 2005 a notice of the applicant’s intention to
commence legal proceedings for the recovery of remuneration
due to it
by the
respondent
was sent by the applicant to the Director General, Department of
Education, Free State Province. Condonation was sought
in that
letter
for failure to comply with the provisions of section 3(2)(a) of Act
40 of 2002, in that the notice was not sent within 6
months of the
debt
becoming
due. Having failed to received a positive response to this letter,
the applicant’s attorneys addressed a further
letter on the 2
August
2006
to the respondent wherein they advised that they would accept that
condonation had been agreed to unless they were informed
to the
contrary
by the 8 August 2006. No such communication was made and on the 19
September 2006 summons was issued against the respondent
wherein
the allegation was made that the plaintiff (the applicant) has
complied with the provisions of section 3 of Act 40 of 2002.
In its
plea on the
10
November 2006, the defendant (the respondent) pleaded a bare denial
in respect of this allegation. Further communication between
the
parties
in respect of this denial ensured during the exchange of further
particulars for the purposes of trial as well as during
the Rule 37
Conference
and on the 21 December 2007 the respondent’s attorney addressed
a letter to the applicant’s attorney advising
that he has been
unable
to obtain instructions regarding condonation and inviting the
applicant’s attorney to take such steps as he deemed
necessary
to protect his
client’s
interest.
The
present application was then launched by way of urgency on 10 January
2008, for declaratory relief that the applicant has complied
with the
provisions
of section 3(2)(a) of the Institution of Legal Proceedings Against
Certain Organs of State Act 2002 (Act 40/2002).
[3]
Section 3 of Act 40 of 2002 deals with the giving of Notice of
Intended Legal Proceedings against an Organ of State and as follows:
“
Notice
of intended legal proceedings to be given to organ of state:
(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 ..
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
5
the
facts giving rise to the debt; and
such
particulars of such debt as are within the knowledge of the
creditor.”
Section
3(4) provides:
(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)he
organ of state was not unreasonably prejudiced by the failure.”
It
is clear from the wording of the section that these requirements must
be shown to exist cumulatively and in conjunction with
each other. It
is also
trite
law that the applicant bears the overall onus of proving their
existence on a preponderance of probability. See
PILLAY
v KRISHNA
1946 AD
946
at 952 – 953;
SOUTH
CAPE CORPORATION PTY LTD v ENGINEERING MANAGEMENT SERVICES PTY LTD
1977 (3) SA 534
A
at
534 at 548.
[4]
Two issues arise for decision in this application. The first is
whether the notice in terms of section 3(1)(a) was actually
given. I
did not
understand
there to be any dispute about the fact that the giving of such Notice
was peremptory rather than directory and, that
being the case,
should
this court find that no notice was given by the applicant, that would
be the end of the matter and the application falls
to be dismissed.
Secondly,
should notice in fact have been given then, the question arises: Did
the applicant satisfy this court of the existence
of all three
requirements
contained in section 3(4)(b) of Act 40 of 2002.
[5]
In deciding this first issue it is necessary to have regard to the
purported written notice dated 12 September 2005 (annexure
F) to the
papers
in
order to establish whether it complies with the requirements
contained in section 3(2)(a) and (b) so as to constitute proper
notice in terms of
section
3(1) of Act 40 of 2002. The letter reads as follows:
“
We
refer to the above and confirm that we act herein on behalf of Mr
Mogopodi. It is our instructions that Mr Mogopodi was employed
by
yourselves for the period 27 February
2003
to 30 November 2004 at the centre RE MMOGO District of Motheo as a
casual. It is further our instructions that our client for
the work
that was done by himself filled in the
necessary
claim forms for payment by yourselves and that dispute demand thereto
you refuse to make payment to our client. Therefore,
is it our
instructions to claim form
yourselves
payment in the amount of R230 731-03 which is due and owe by
yourselves to our client. Kindly take note that this letter
is
addressed to yourselves in terms of Section
3
Act 40
of 2002 and should the said amount not be paid to the offices
of Kramer Weihmann & Joubert in a period of 30 (THIRTY) days from
this letter of demand the we will
continue
with action against yourself. Kindly take note that we are aware of
the fact that this letter does not comply with Section
2(A) of the
said Act and request as to whether you
will
agree to condonation thereof seeing in the light of the
correspondence between our offices.”
The
respondent contends that this letter is not a notice in compliance
with section 3 of Act 40 of 2002 in view of the fact that
the letter
relates to a
debt
being claimed in respect of the REMOGO Centre and not, as was claimed
in the preceding correspondence between the parties and
in the
subsequent
summons, in respect of the Remogo 2 and Remogo 3 Centres, which were
separate and distinct from the Remogo Centre. It
is
apposite
at this stage to examine relevant previous correspondence. Annexure
“A” – Letter of Kramer Weihmann &
Joubert
attorneys addressed
to
the Department of Education dated 9 December 2004. The letter reads
as follows:
“
Ons
verwys na die bogenoemde aangeleentheid en heg hierby aan afskrifte
van ons kliënt se eis dokumente vir u dringende aandag
en
kennisname. Dit is ons instruksies dat
ons
kliënt in beheer is van die Re Mmogo Centre sedert Januarie 2003
en dat hy sedert laasgemelde datum nog geen betaling ontvang
het vir
dienste gelewer nie. Ons versoek
u
vriendelik hiermee om dringend aan ons ‘n aanduiding te gee op
welke datum ons kliënt betaling sal ontvang. Ons verneem
graag
vriendelik dog dringend van u in hierdie
verband.”
Annexure “B” – Letter from Free State Province to
Kramer Weihmann & Joubert Inc dated 20 December
2004. In terms of
this letter the receipt of annexure “A” is
confirmed:
“Receipt of your letter dated 09 December 2004, regarding the
matter referred above, is hereby acknowledge. Kindly
be informed that
the Directorate: Legal Services
and
Labour Relations has referred this matter to the District Office of
Education, that is Motheo District, for consideration. You
will be
informed of the outcome in the due course.”
Annexure
“C” – Letter from Free State Province to Kramer
Weihmann & Joubert Inc dated 15 February 2005: “Receipt
of
your letter dated 31 January 2005, regarding the above
matter,
is herewith acknowledged. Please be informed that according to the
report form the District Office of Education: Motheo
District, the
Department of Education does not
owe
Mr Mogopodi any salary for the period 2003 and 2004 (
see
the report attached
).” Annexure “D” –
Letter from Kramer Weihmann & Joubert Inc to Respondent dated 13
April
2005. The relevant part of this letter reads as follows: “We
refer to the abovementioned matter as well as to your letter
dated 15
February 2005 which contents have been
noted.
We apologize for the delay herein, but confirm that we have been
experiencing difficulties to obtain proper instructions
from
our client regarding the contents of your letter. We herewith wish to
clarify our client’s position herein and confirm
that our
client was employed during 2003 and 2004 as
centre
manager of Remogo Centre.
It
is our instructions that our client has completed proper claim forms
regarding last-mentioned and was also fully paid regarding
his claims
for last-mentioned centre as indicated
in
the annexures of your letter dated 15 February 2005. It is further
our instructions that our client was also centre manager of
Remogo 2
as well as Remogo 3 which centres had
their
own extensions. Last-mentioned is where the dispute arose seeing that
our client was never paid for the services he rendered
to the last
two centres although he rendered
his
services. It is further our instructions that our client has properly
completed the claim forms for Remogo 2 and Remogo 3, but
Khama
refused the aforesaid claims forms
seeing
that it was her view that our client was not entitled to any payment
regarding the services he rendered for Remogo 2 and
Remogo 3 Centres.
Due to last-mentioned our
client
has taken up this matter with Mr. Seqebo who indicated to our client
that he must submit a full report to Mrs. Khama where
after Mr.
Seqebo will revert back to our client
concerning
payment of claims for Remogo 2 and Remogo 3 Centres for the time
period 2003 and 2004. Up until date our client has not
received any
response and therefore it
was
his view that his claims were in processing, seeing that
last-mentioned indicated that if there is any problems h would revert
back to our client. We therefore request you to
urgently
do the necessary investigation regarding our client’s claims.
We attach hereto copies of our client’s claims
forms properly
completed by our client. Your urgent response
in
this regard will be highly appreciated.” Annexure “E”
– Letter from Respondent to Kramer Weihmann &
Joubert Inc
dated 20 June 2005: We refer to the above-mentioned
matter
as well as your letter dated 13 April 2005. The Directorate: Legal
Services and Labour Relations has investigated the matter
and we have
established that Motheo District
does
not have any ABET centres that are called Remogo 2 and Remogo 3. The
Department of Education confirms that Motheo District
has an ABET
centre that is called Re
Mmogo
where your client was employed as centre manager during 2003 and
2004. We deny your client’s claim that the Department
of
Education employed him in other centres
besides
Re Mmogo. We submit further that Mr Seqebo denies ever indicating to
your client that there was any consideration by him
to pay your
client for the services your client
claims
to have rendered at the ABET centres in question. To the contrary, Mr
Seqebo informed your client that according to the policy
of the
Department of Education no one was
permitted
to open any public centre, satellite centre or extension class
without permission from the Head of Department.”
Annexure “F”
– Letter from Kramer Weihmann & Joubert
to
Respondent dated 12 September 2005: “We refer to the above and
confirm that we act herein on behalf of Mr Mogopodi. It
is our
instructions that Mr Mogopodi was employed
by
yourselves for the period 27 February 2003 to 30 November 2004 at the
centre REMMOGO District of Motheo as a casual. It is further
our
instruction that our client for the work
that
was done by himself filled in the necessary claim forms for payment
by yourselves and that despite demand thereto you refuse
to make
payment to our client. Therefore, is it
our
instructions to claim form yourselves payment in the amount of R230
731-03 which is due and owe by yourselves to our client.
Kindly take
note that this letter is addressed to
yourselves
in terms of Section 3 of Act 40 of 2002 and should the said amount
not be paid to the offices of Kramer Weihmann &
Joubert in a
period of 30 (THIRTY) days from this
letter
of demand the we will continue with action against yourself. Kindly
take note that we are aware of the fact that this letter
does not
comply with Section 2(A) of the said Act
and
request as to whether you will agree to condonation thereof seeing in
the light of the correspondence between our offices.”
[5]
It is common cause between the parties that no debt is owed to the
applicant by the respondent in respect of the Remogo Centre,
such
monies
which were due having been paid to applicant by the respondent. The
question is therefore was the Notice dated the 12 September
2005
sufficiently
clear so as to identify the particulars of the debt and the facts
giving rise to the debt concerned. It is apparent
from the letter
dated the
12
September 2005 that no mention whatsoever is made of a debt owed in
respect of the Remogo 2 and Remogo 3 Centres and no particularity
whatsoever
of such debt is given contrary to the allegations set out in the
particulars of claim at paragraph 7, 8 and 9. I quote
from the
particulars
of
claim:
“
7.
During
Februarie 2003
Plaintiff was requested by
Seqebo
to perform similar duties at two other adult centers of
the Defendant [hereinafter referred to as “
Re
Mmogo 2
” and
“
ReMmogo
3
”] on the same terms of the contract.
8.Plaintiff
accepted
Seqebo’s
offer and rendered services to Defendant in respect of
Re
Mmogo 2
and
Re
Mmogo 3
for the period
February
2003
to
November
2004.
9.
9.1
Plaintiff rendered the following services in respect of
Re
Mmogo 2
and
Re Mmogo 3
from
1 February
to
end
June 2003
(agreed
hourly rate –
R108.25
):
9.1.1
February 2003 84 hours
R9093.00
9.1.2
March 2003 77 hours
R8335.25
16
9.1.3
April 2003 94 hours
R10,175.50
9.1.4
May 2003 104 hours
R11,258.00
9.1.5
June 2003 84 hours
R9093.00
9.2
From
August
to
November 2003
(agreed
hourly tariff –
R117.45
):
9.2.1
August 2003 94 hours
R11,040.30
9.2.2
September 2003 101 hours
R11,862.45
9.2.3
October 2003 70 hours
R8221.50
9.2.4
November 2003 84 hours
R9865.80
9.3
From
January
to
August
2004
(agreed hourly tariff
–
R117.45
):
9.3.1
January 2004 84 hours
R9865.80
9.3.2
February 2004 112 hours
R13,154.40
9.3.3
March 2004 112 hours
R13,154.40
9.3.4
May 2004 77 hours
R9043.65
9.3.5
June 2004 189 hours
R22,198.05
9.3.6
August 2004 105 hours
R12,332.25
9.4
From
September
to
November 2004
(agreed
hourly
tariff
–
R124.70
):
9.4.1
September 2004 168 hours
R20,949.60
9.4.2
October 2004 105 hours
R13,093.50
9.4.3
November 2004 119 hours
R14,839.30
___________
Total
R217,575.75
___________”
[6]
The purported notice dated the 12 September 2005, accordingly refers
to a cause of action completely at odds and different to
that
referred
to
in previous correspondence and in the summons such that it cannot be
said that the debt claimed in the purported notice was identifiable
by the
respondent.
In
MATYOBENI v MINISTER OF
POLICE
1979 (1) SA 241
D, Howard J (as he then was) dealt
with the question of whether the
requirement
of the giving of notice in terms of section 32(1) of the Police Act 7
of 1958 was peremptory or not. In deciding the
issue he had
reason
to question the underlying rationale for the requirement of giving of
notice to organs of the state of intended legal proceedings
and came
to
the conclusion that considerations of convenience were the paramount
object of the injunction relative to the giving of notice.
At p. 244
of his
judgment
he quotes with approval the dictum of Marais J (as he then was) in
DEASE v MINISTER VAN
JUSTISIE
1962 (2) SA 302
T at 305:
“
Dit
is m.i. voor die hand liggend dat die kennisgewing voorafgaande aan
die dagvaarding ‘n tweeledige doel dien: eerstens,
om die
verweerder ‘n kans te gee om tydig met die
ondersoek
aan eie kant van die feite van die geval te begin; tweedens, omdie
verweerder in staat te stel om vóór die
bestelling van
die dagvaarding en die aangaan van die
regskoste
te besluit of hy die eis sal betaal of ‘n aanbod ter skikking
sal maak of die saak sal verdedig. (Sien
Osler
V Johannesburg City Council,
1948 (1) S.A. 1027
(W) op bl.
1031).
Indien tydige ondersoek ‘n oorweging agter hierdie bepaling is,
sluit dit uiteraard aan by die eerste deel van art.
32 van die
Polisiewet, wat die verjaringstydperk op ses
maande
stel. Die uitwerking van die voorskrif vir kennisgewing is dat die
verweerder nie later as vyf maande na die gebeure wat
die
skuldoorsaak ten grondslag lê, met sy
insameling
van inligting en getuienis kan begin nie.”
He
goes on to quote Wessels JA in
LABUSCHAGNE
v LABUSCHAGNE; LABUSCHAGNE v MINISTER VAN JUSTISIE
1967
(2) SA 575
A at
588:
“Die
rede vir hierdie bepaling – hoewel dit nie noodwendig die
enigste rede mag wees nie – skyn te wees dat die
verweerder
minstens ‘n maand gegun moet word om te
besluit
wat hom te doen staan waar hy onder die bedreiging van die instelling
van ‘n geding staan. Die verweerder moet die
geleentheid gegee
word om op die in die
kennisgewing
gestelde eisoorsaak in te gaan, getuienis te probeer bekom,
regsadvies in te win en, veral waar die Staat betrokke
is, kwessies
rakende beleid te oorweeg. Dit is
ook
voor die hand liggend dat ‘n verweerder gedurende die tydperk
van minstens ‘n maand van standpunt kan verander na
gelang van
veranderde omstandighede. Dit mag ‘n
bykomende
rede wees waarom die Wetgewer dit goed gedink het om ‘n eiser
te belet om sy geding in te stel voor ten minste een
maand na die
kennisgewing gegee is.”
[7]
I am of the view that no reason exists to find that the underlying
purpose for the giving of notice in terms of section 3 of
Act 40 of
2002 is any
different
to the reasons enumerated in these decisions, namely one of
convenience in order to assist the particular organ of state
to
conduct
proper
investigations into the claim and then to decide whether to make
payment or defend the intended action. In the present case
the notice
given,
even on a benevolent construction thereof, was so utterly defective
that it cannot be said to have constituted any notice
at all of the
intended
legal suit. In the result the giving of such notice being peremptory,
the application must fail on that ground alone. In
light of this, it
is not
necessary
for me to consider and decide the issue of condonation in terms of
the provisions of section 3(4)(a)(b) of Act 40 of 2002.
[8]
Miss Eloff who appeared on behalf of the respondent requested me to
grant a punitive cost order against the applicant. In my
view no
grounds
exist
in this matter for such an order being made. The delay in bringing
proceedings is not one of the grounds for the making of
such an order
unless
accompanied by
mala fides
nor is the failure to comply with the statutory
requirements in the giving of notice of intended legal
proceedings
to, an organ of state one of those grounds.
[9]
The application is dismissed with costs.
_____________
S.
EBRAHIM, J
On
behalf of the applicant: Adv. H. J. Cilliers
Instructed
by:
Kramer
Weihmann & Joubert
BLOEMFONTEIN
On
behalf of the respondent: Adv. Z. Eloff
Instructed
by:
State
Attorney
BLOEMFONTEIN