Dauth and others v Minister of Safety and Security and Others (729/2007) [2008] ZANCHC 26; 2009 (1) SA 189 (NC) (23 May 2008)

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[2008] ZANCHC 26
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Dauth and others v Minister of Safety and Security and Others (729/2007) [2008] ZANCHC 26; 2009 (1) SA 189 (NC) (23 May 2008)

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IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
number:
729/2007
Date
heard:
09/05/2008
Date
delivered:
23/05/2008
In
the matter between:
CATHARINA
DAUTH
First
Applica
nt
HELENA
DOGANISA HENDRIKA DAUTH
Second
Applicant
MACDOLENE
OLYNE
Third
Applicant
PAMELA
ELVONIA NERO
Fourth
Applicant
CHARLOTTE
RENTIOA OLYNE
Fifth
Applicant
EDWIN
BRENDAN OLYNE
Second
Applicant
and
THE
MINISTER OF SAFETY AND SECURITY 1
st
Respondent
COLLIN
LOCK
2
nd
Respondent
CHRISTO
BRIAN FORTUNE
3
rd
Respondent
Coram:
Lacock
J
JUDGMENT
LACOCK
J:
[1] This
is an application by the applicants for condonation of their failure
to comply with the provisions of
s
3 (1) (a)
of the
Institution
of Legal Proceedings Against Certain Organs of State Act, 40 of 2002
(
the
Act)
in
that legal proceedings were instituted against the first respondent
for damages allegedly suffered by the applicants by reason
of the
averred negligent conduct of the second respondent, a police officer,
who acted in the course and scope of his official duties
as such.
[1.1] It is alleged by
the applicants that the second respondent negligently failed to
prevent the third respondent from robbing firearms
from the
Postmasburg police station, and that this neglect of official duties
was causaly connected to a shooting incident during
which the third
respondent shot and killed the husband of the first applicant as well
as the husband of the third applicant and the
first applicant was
wounded. The applicants claim damages for inter alia loss of support
allegedly suffered as a consequence of
the deaths of the deceased.
[2] The following
facts, and which are common cause between the parties, are of
importance for purposes of the present application:
[2.1] The
pleadings in this matter are closed, and the matter was enrolled on
the roll of this Court for hearing on 16 October 2006.
Immediately
prior to the hearing of the matter, the applicants notified the
respondents of their intention to amend its particulars
of claim to
provide for an application for condonation in terms of
s 3 (4)
of the
Act
.
This application for an amendment was opposed on the basis that such
an application for condonation requires a formal application
on
notice of motion, and that such an application should be adjudicated
upon before the trial can commence. The latter argument
was upheld
by the said Court, and the trial was postponed to afford the
applicants the opportunity to bring a formal application
for
condonation.
[2.2] The relevant
conduct on which the applicants’ claims are founded, occurred on 1
July 2002 at Postmasburg.
[2.3] The
summons was issued on 22 July 2004 and served shortly thereafter.
[2.4] The claims, in
the normal cause, would have been extinguished by prescription on 30
June 2005.
[2.6] The
application for condonation was filed on 2 July 2007.
[2.7] For
purposes of this application it is to be accepted that no timeous
s
3 (1) (a)
notice
was given by or on behalf of any of the applicants to the first
respondent.
[3] Mr
Potgieter SC, on behalf of the first respondent, relied primarily on
the provisions of
s
3 (4) (b) (Ι)
of
the
Act,
contending
that the claims of the applicants had been extinguished by
prescription. His argument can be summarised as follows: The
provisions of
s
3
(1) (a)
of the
Act
are peremptory. A failure to comply with these provisions renders a
subsequent summons of no legal force and effect unless condonation
is
granted in terms
of
s 3 (4)
of the
Act
.
The summons in casu is to be regarded as of no force and effect
until condonation is granted. Since condonation was only sought
on 2
July 2007, the claims of the applicants were then already
extinguished by prescription (on 30 June 2005). The three year
prescription
period was not interrupted by the issue of summons on 22
July 2004 in terms of
s
15
of the
Prescription
Act, 68
of
1969
,
since the said prescription period cannot legally be interrupted by a
summons that is of no legal consequence. The court is, in
terms of
s
3 (4) (b) (Ι)
of
the
Act
not competent to grant condonation in respect of a claim or claims
that had been extinguished by prescription.
[4.]
S
3
of the
Act
reads
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 –
the creditor has given the organ
of state in question notice in writing of his or her or its
intention to institute legal proceedings
in question; or
the organ of state in question
has consented in writing to the institution of that legal
proceedings-
without such notice; or
upon receipt of a notice which
does not comply with all the requirements set out in subsection
(2).
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);
and
briefly set out –
the facts giving rise to the
debt; and
such particulars of such debt
as are within the knowledge of the creditor.
For purposes of subsection (2)
(a) –
a debt may 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
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-
the debt has not been
extinguished by prescription;
good cause exists for failure
by the creditor; and
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
legal proceedings in question,
on such conditions regarding notice to
the organ of state as the court may deem appropriate.”
[5] Counsel
were unable to refer me to any authority in point, and I was unable
to find any either. Mr Potgieter however relied on
the following
extract from
Laubscher
,
“EXTINCTIVE
PRESCRIPTION”
(Juta
& Co., 1996)
at
p
127
:
“The
service of process on the debtor must furthermore commence
proceedings against the debtor in a legally effective manner. A
defective provisional sentence summons will not interrupt
prescription and upon dismissal of such a summons the plaintiff will
not
be entitled to continue with the principal case. Where service
of the process is premature in terms of a statutory provision, legal
proceedings are not effectively commence and prescription is
therefore not interrupted in such an instance.”
The
learned author relies on the following judgments in support of this:
Santam
Insurance Co. Limited v Vilakasi
1967
(1) S.A. 246
(A)
at
253
,
and
Evins
v Shield Insurance Co. Limited
1980 (2) S.A 814
(A)
at
833
-834
.
Mr Potgieter also referred me to the publication, “PRESCRIPTION IN
SOUTH AFRICAN LAW” by John Saner and more particularly to
the
following passage on pg
3-67
to
68
:
“Essentially,
therefore, what section 15(1) contemplates is the service of a
process by which legal proceedings are effectively
commenced for the
payment of the debt in question. Similar principles will apply to
actions against local authorities and the like
in terms of the
Institution of Legal Proceedings against certain Organs of State Act
40 of 2002, particularly section 3(1) and (2).
Consequently, if
notice has not been given within six months of the debt becoming due
(and condonation has not been granted or the
organ of state has not
consented to the institution of legal proceedings without notice) or,
even if these conditions are fulfilled
and 30 days have not elapsed
after the notice date, the service of a process will be premature and
ineffective for interrupting prescription.
Clearly, therefore, since
legal proceedings cannot effectively be commenced by the service of a
premature summons or other process,
prescription cannot thereby be
interrupted.”
The
author too relies on the same cases referred to by Laubscher.
[5.1] Not
anyone of these authors however discusses the effect of the granting
of condonation under
s
3 (4)
of the
Act
on a summons issued before condonation had been granted. Saner
however qualifies his aforesaid statement by
“………..and
condonation has not been granted or the organ of state has not
consented to the institution of legal proceedings
without notice……….”
[5.2] The
issue in the Vilakasi matter was whether a summons served on the
insurance company prior to the delivery of a notice in
terms of
s
11
(bis)
(1)
of the
Motor
Vehicle Insurance Act, 29
of
1942
,
which section required that,
“no
such claim shall be enforceable by legal proceedings commenced by a
summons served on the registered company before the expiration
of a
period of 60 days as from the date on which the claim was sent…….”
,
interrupted the running of prescription. It was held,
“In
my opinion it is clear that the service referred to in sec. 6 (1) (b)
must be a service whereby action is instituted as a step
in the
enforcement of the claim or right. The underlying reason why such a
service interrupts prescription is that the creditor
has thereby
formally involved his debtor in court proceedings for the enforcement
of his claim. That effect is absent where, as
here, the claim is
statutorily unenforceable by proceedings commenced by a summons
served prematurely.”
(
at
253
H)
.
[5.3] In
Evins (supra) the Appellate Division confirmed the aforesaid dictum,
where the court dealt with similar provisions in
s
25
of the
Compulsory
Motor Vehicle Insurance Act, 56 of 1972
,
and
s
15
of the
Prescription
Act, 68 of 1969
.
The court held,
“Although
there are substantial differences in the wording of the present
Prescription Act 68 of 1969 (as a comparison of the relevant
portions
of ss 3 (1) and 6 (1) (b) of Act 18 of 1943 on the one hand and ss 10
(1) and 15 of Act 68 of 1969 on the other hand will
readily
demonstrate), I am nevertheless of the view that the ratio decidendi
of Vilakasi’s case supra is applicable to the case
of a premature
service of summons which falls to be considered under s 25 of the Act
and s 15 of Act 68 of 1969. in my opinion s
15 (1), read together
with s 15 (6), contemplates the service of a process (in this
instance a summons) whereby legal proceedings
are effectively
commenced for payment of the debt in question; and consequently the
service of a summons, which in terms of s 25
of the Act is premature
and, as stated above, could not effectively commence legal
proceedings for enforcement of the claim for compensation,
would not
interrupt the running of prescription.”
(at
833
F – H
)
[6] The ratio in the
aforesaid decisions was that the delivery of a notice to the
insurance company in terms of the applicable legislation
prior to the
issue of a summons, was a peremptory statutory requirement. Non
compliance with these statutory requirements would
render a summons
issued prior to such compliance premature and of no legal
consequence. The question of condonation of the said
failure to
timeously deliver the notices did not arise, and no provision was
made for such an eventuality in the relevant legislation.
[6.1] This,
to my mind, is the important distinction to be drawn between the
aforesaid and similar statutory requirements and the
provisions
contained in
s
3
of the
Act
.
[6.2] Although
the wording of s 3 is couched in peremptory terms, it cannot be
construed as peremptory in the strict sense of the
word if the
section is read as a whole and more particularly with
ss
(4)
thereof.
“Such
a construction would be in accordance with the rule that the language
of every part of a Statute should be construed as to
be consistent,
so far as possible, with every other part of that Statute…….”
(Chotabhai
v Union Government and Another
1911 AD 13
at 24)
.
The
mere fact that provision is made in
s
3 (4)
of the
Act
for condonation for the failure to comply with the provisions of
s
3 (1)
,
is indicative thereof that the provisions of
s
3 (1)
of the
Act
are not peremptory in the sense that non compliance therewith renders
a “
premature
”
summons void or legally ineffective. See in this regard the
unreported judgment of
Van
Der Merwe J
in
Marais
v Minister van Veiligheid en Sekuriteit en ‘n Ander (Vrystaat
Provinsiale Afdeling) Case Nr. 2727/2005.
[6.3]
That the legislature did not intend a “premature” summons to be
ineffective or void, is to be inferred from the wording
of
s
3 (4) (a)
of the
Act,
viz. “
If
an organ of State relies on a creditor’s failure to serve a notice
in terms of
s
2 (2) (a)
,
the creditor may apply to a court having jurisdiction for
condonation………….”
These words are indicative thereof that, unless reliance is placed
on a creditor’s failure to comply with the provisions of
s
3 (1)
of the
Act
,
the proceedings thus instituted (for instance by the issuing of a
summons) are regarded as valid and effective.
[6.4] What
a court is entitled to condone is the failure of a creditor to give
the required notice
before
legal proceedings for the recovery of a debt had been instituted.
This, to my mind, presupposes that legally effective proceedings had
to be instituted. It therefore follows that, once condonation
is
granted the legal proceeding thus instituted remain effective as from
the date of its inception (date of issue), and no further
order for
the resurrection of those proceedings is required. This reasoning is
amplified by the very wording of
s
3 (4) (a)
of the
Act
quoted in paragraph 6.3. above.
[7] If
I am correct in my finding that a “premature” summons is for
purposes of
s
4
of the
Act
to
be regarded as valid and effective (unless the relevant organ of
State relies on the creditor’s failure to serve a
s
3 (1) (a)
notice, or no consent was given in terms of
s
(3) (1) (b)
,
and an application for condonation fails), the dicta in
Vilakasi
–
and
Evins
(supra)
are not applicable to a summons contemplated in
s
3 (4)
of the
Act
.
The three year prescription period under the
Prescription
Act of 1969
had therefore not been interrupted by a legally ineffective summons,
but had in casu been interrupted by the issuing of a summons
whereby
legal proceedings for the enforcement of the claims by the applicants
were effectively commenced. This court is therefore
not incompetent
to grant condonation as requested by reason of the provisions of
s
3 (4) (b) (Ι)
of the
Act
.
[8] Although
Mr Potgieter in his heads of argument submitted that the applicants
failed to provide “good cause” for their failure
as required in
s
3 (4) (b) (ΙΙ)
of the
Act
,
he, correctly so in my view, conceded in argument that, since no
blame can be attributed to the applicants for the ineptitude of
their
lawyers and since it was at all times the bona fide intention of the
applicants to pursue their claims against the respondents,
and that
the respondents were not unreasonably prejudiced by the relevant
failure to give notice, and since the pleadings in this
matter are
closed, it can be accepted for purposes of this application that good
cause had been shown to exist. See in this regard
the unreported
judgment of the
Supreme
Court of Appeal
in the matter of
Thembela
Madinda v Minister of Safety and Security of the Republic of South
Africa, 153/07.
[8.1] It
was furthermore conceded by Mr Potgieter that the first respondent
was not unreasonably prejudiced by the failure of the
applicants.
[8.1] By
reason hereof no more needs to be said in this regard.
[9] The parties are ad
idem that, should condonation be granted the further relief sought in
the Notice of Motion ought to be granted
as well.
[10] In
regard to costs Mr Van Niekerk SC for the applicants submitted that
the first respondent’s opposition to the application
for
condonation was unreasonable, and that I should, by reason thereof,
order the first respondent to pay the costs of the application.
I however, agree with
Mr Potgieter that the opposition was not unreasonable. The laxity of
applicants’ legal representatives is
almost inexcusable, and it is
this conduct that necessitated the application for condonation. The
first respondent was fully justified
to oppose the application on
this ground as well as on the novel ground of prescription which was
all but a frivolous defence.
To
my mind justice and fairness demand that no order in regard to costs
should be made.
[12] The
following order is made:
A.
Condonation
is granted for the applicants’ failure to comply with the
provisions of s 3 (1) (a) of the Institution of Legal Proceedings
against Certain Organs of State Act, 40 of 2002.
B. Leave
is granted to the applicants to pursue their claims against the
respondents on the pleadings already served and filed under
case
number 788/2004.
C. No
order is made in respect of costs.
_______________
HJ Lacock
JUDGE
For
the applicant:
Adv
J.G Van Niekerk SC
For
the respondents:
Adv
Potgieter SC