Minister of Safety and Security and Another v Bosman (A725/2007, 4261/2007) [2008] ZAWCHC 30; 2010 (2) SA 148 (C) (4 June 2008)

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[2008] ZAWCHC 30
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Minister of Safety and Security and Another v Bosman (A725/2007, 4261/2007) [2008] ZAWCHC 30; 2010 (2) SA 148 (C) (4 June 2008)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: A725/2007
4261/2007
-
REPORTABLE -
Coram:
CLEAVER et LE GRANGE JJ
In the matter between:
THE
MINISTER OF SAFETY AND SECURITY
1
st
Appellant
MORNE
VAN SCHOOR
2
nd
Appellant
and
OLIVIA
ELBENITA BOSMAN
Respondent
JUDGMENT DELIVERED ON: 4 JUNE
2008
Le
Grange J
:
[1] This
is an appeal against an order granted by the magistrate, Paarl in
favour of the Respondent.
[2] The
Respondent (Applicant in the court
a
quo
) launched an urgent
application on notice of motion in the Magistrates’ court, seeking
relief,
inter alia
for condonation of the late service of the notice in terms of
Section 3(4)(a) of the Institution of Legal Proceedings against
Certain
Organs of State Act, No 40 of 2002 (
“the
Act”
).
[3] The
Appellants (Respondents in the court
a quo
), opposed the
application and
in
limine
, raised the issue
that in terms of the Magistrates’ Court Act, no 32 of 1944, as
amended, the magistrate lacked jurisdiction to
hear such an
application.
[4] Briefly
stated, the facts relating to the relief sought by the Respondent are
as follows: During August 2004, the Respondent
was allegedly
assaulted by the Second Appellant, a policeman, whilst in the employ
of First Appellant. A criminal charge was preferred
and the Second
Appellant was prosecuted. The Respondent did not immediately instruct
her present attorneys to institute a civil claim
against the
Appellants. According to her, she was under the mistaken impression
that the criminal matter had first to be finalized.
In June 2005, she
gave the necessary instructions to proceed with the claim. In July
2005, her attorneys sent a written notice of
the claim per registered
mail to the offices of the Provincial Commissioner of Police, Cape
Town. This caused the Provincial Commissioner
of Police Western Cape,
to respond immediately in writing, in which he pointed out that the
Respondent had failed to comply with
the provisions of section 4 of
the Act. The Respondent’s Attorneys, were also notified of the
address of the National Commissioner
of Police who, in terms of
section 4, is the authorized person to receive such correspondence.
During August 2005, the Respondent’s
claim was forwarded to the
office of the National Commissioner of Police. The Respondent’s
Attorneys were then informed in December
2005, by the National
Commissioner that the claim had been rejected on the basis that the
written notice of the Respondent did not
comply with the provisions
of section 3(2)(a) of the Act. According to the Respondent she had
sight of said letter in January, 2006.
Despite the correspondence
from the National Commissioner, the Respondent failed to instruct her
attorneys to proceed with her claim.
She says this was due to a lack
of funds. The criminal trial against Second Appellant has also not
been finalized. It was only when
the Respondent’s attorneys
informed her, shortly before the application was launched, that the
claim was due to prescribe on 26
August 2007 that the proceedings
were launched in the Court
a
quo
on 20 August 2007.
[5] In
terms of the provisions of Section 3(1) of the Act, no legal
proceedings
for
the recovery of a debt may be instituted against an organ of state
unless:-
(1)(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 form 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.
[6] The magistrate’s findings are
recorded as follows:-
“
Na
oorweging van die stukke en die argumente word die volgende gelas:
die
hof het jurisdiksie om aansoek aan te hoor as Reël 29(1) (g) gelees
word saam met Art 46, Wet op Landdroshowe;
die
skuldoorsaak oor die stukke het * geheel binne hierdie hof se
jurisdiksie gebied plaasgevind;
m.b.t.
beskrywing van applikant is dit so dat meer volledige besonderhede
uit die dagvaarding sal voortspruit. Sy het nie ʼn volledige
beskrywing gegee van haarself, maar dit maak nie die aansoek
ongeldig nie;
M.b.t.
dringendheid: die hof het bevind dat daar voldoende grond naamlik
haar finansiële onvermoë (te kort aan geld) uit stukke
voor hof
geplaas is. Die tyd het verloop mag wees a.g.v. * se getalm, maar
applikant kan nie daarvoor blameer word nie en ek *
is bewering dit
is as gevolg van haar eie finansiële onvermoe.
Die
hof * dat hof reels nagekom word:
Die
hof kan bevind dat die Reëls nie nagekom is nie, maar die applikant
is steeds binne tyd (verjaring) en het alle reg om die
aansoek to
bring. Tegniese argumente soos die nie-nakoming van die hofreëls
behoort nie die applikant te ontneem van haar reg
om haar saak in
die hof te stel nie.
Die
staat het alle middele tot hul beskikking en word nie onredelik
benadeel nie.”
Die
skuld is nog nie uitgewis nie, derhalwe word die aansoek toegestaan
vir bedes 1-4
Dit
is ‘n eenvoudige aansoek en nie ingewikkeld om Adv aan te stel
nie. Koste sal wees koste in geding.”
[7] The
principal argument by Mr J van der Scyff, who appeared on behalf of
the Appellants, is that the Magistrate erred in finding
that the
Magistrates’ Court has the necessary jurisdiction to hear an
application condoning a litigant’s failure to serve a notice
in
terms of Section 3(2) of Act 40 of 2002 timeously. He contended that
neither the Magistrates’ Court Act, nor the Magistrates’
Court
Rules, provided the court
a
quo
with the jurisdiction
to hear an application of this nature.
[8] Mr
A Caiger, who appeared on behalf of the Respondent, contended that
the Act, does not prohibit a Magistrate’s Court
from
entertaining such an application, but even if it does, this Court
can rely on its inherent jurisdiction to substitute the Court
a
quo’s
, order with the
same order to avoid the Respondent from suffering any further
prejudice.
[9] The
magistrate in
casu,
relied
on rule 29(1)(g) read with section 46 of the Magistrate’s Court
Act, to hear the application. Rule 29 of the Magistrates’
Court
rules is only applicable to trials. The reliance by the magistrate on
rule 29(1) is therefore misplaced. Even if the magistrate
inadvertently referred to rule 29(1) instead of section 29(1)(g) read
with section 46 of the Magistrates’ Court Act, to confer
jurisdiction, then she also misdirected herself. Section 29 clearly
refers to jurisdiction in respect of causes of action. Section
29(1)(g) provides as follows:-
“
29 Jurisdiction
in respect of causes of action
– (1) Subject to the provisions of this Act and the
National Credit
Act, 2005
, the court, in respect of causes of action, shall have
jurisdiction in-
(a)…;
(b)…;
(c)…;
(d)…;
(e)…;
(f)…;
(fA)..;
(g) actions
in terms of
section 16(1)
of the
Matrimonial Property Act, 1984
,
where the claim or the value of the property in dispute does not
exceed the amount determined by the minister from time to time
by
notice in the Gazette;..”
[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
.
[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.
The preamble to an act may be taken into account in order to
determine whether the provisions of the act may be enforced
by means
of an application in the Magistrates’ Court. In
Nduna
v Absa Bank Ltd and others
2004(4)
SA 453 at 456 [8]. The Court held it was clear from the preamble of
the Prevention of of illegal Eviction from and Unlawful
Occupation of
Land Act 19 of 1998 (PIE), read with section 9 of the act, that the
Legislature intended to confer jurisdiction on
the Magistrates’
Court to entertain applications for eviction proceedings under the
act.
[12] Section 3(4)(a) provides 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.”
In
my view, it is clear that the provisions of the Institution of Legal
Proceedings
against
Certain Organs of State Act, do not confer jurisdiction on the
Magistrates
Courts
to hear applications of this nature nor can this be implied having
regard to
the
preamble of the statute.
[13] It
is common cause that no action was pending between the parties in the
court
a
quo.
The finding by the magistrate that the whole cause of action arose
within the Magistrates’ Courts jurisdiction is according to
me,
irrelevant. The matter in
casu
differs
significantly
from the instance where authority may be implied when a statute gives
jurisdiction to the court on the subject in dispute
and an action is
pending between the parties.
See
Sibiya,
supra
at 337 E-G.
[14] The
proposition by Mr Caiger, that this Court should rely on its inherent
jurisdiction to substitute the magistrate’s order
with the same
order to prevent the Respondent from suffering any further prejudice,
is misconceived. In my view it will be bad in
law for this Court to
do so.
[15] It
follows that magistrate, due to lack of jurisdiction, erred in
entertaining the application and the appeal should therefore
succeed.
[16]
In the result, I propose the following order.
The appeal succeeds with costs. The
order of the magistrate dated 23 August 2007, is set aside and
substituted with the following.
“The
Application is dismissed with costs.”
________________________
A
LE GRANGE, J
I
agree. It is so ordered.
______________________
CLEAVER, J