Dauth and Others v Minister of Safety and Security and Others (788/2004) [2006] ZANCHC 107 (20 October 2006)

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[2006] ZANCHC 107
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Dauth and Others v Minister of Safety and Security and Others (788/2004) [2006] ZANCHC 107 (20 October 2006)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
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to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 788\2004
Date
heard: 2006-10-16
Date
handed in: 2006-10-20
In
the matter of
:
CATHARINA
DAUTH FIRST PLAINTIFF
HELENA D H
DAUTH SECOND PLAINTIFF
MACDOLENE
OLYNE THIRD PLAINTIFF
PAMELA
E NERO FOURTH PLAINTIFF
CHARLOTTE
R OLYNE FIFTH PLAINTIFF
versus
THE
MINISTER OF SAFETY
AND SECURITY FIRST DEFENDANT
COLLIN
LOCK SECOND DEFENDANT
CHRISTO
B FORTUNE THIRD DEFENDANT
Coram:
MAJIEDT
J
REASONS
FOR ORDER
MAJIEDT J:
At
the commencement of this trial, Mr Van Niekerk who appears for the
plaintiffs herein, moved an amendment to the plaintiffs’
particulars of claim. Notice of the proposed amendment was filed
with the Registrar of this Court on 13 October 2006 (i.e. on
the
last court day preceding the date on which the trial was supposed to
start) and it was delivered to the first and second defendants’
Kimberley attorneys on 12 October 2006. The first and second
defendants (to whom I shall hereinafter refer to as “
the
defendants
”)
oppose the said application for amendment.
No substantive
application on notice of motion supported by affidavit/s had been
filed. The application was simply moved from the
Bar by Mr Van
Niekerk. Mr Potgieter, who appeared with Ms Henriques for the
defendants, correctly pointed out during his address
that this is a
most unsatisfactory state of affairs, since the defendants have not
been afforded a proper opportunity to consider
the proposed
amendments and to file opposing papers setting forth the basis of
their objections.
After
argument by counsel, it became apparent to all concerned that the
unavoidable consequence of the application for amendment
was that
the matter had to be postponed indefinitely and it was so ordered.
I also issued an order that costs regarding the application
and the
costs occasioned by the postponement stand over for later
determination. I had reserved the reasons for the order which
I now
furnish.
One
of the proposed amendments which the plaintiffs seek, concerns an
alternative averment to the effect that insofar as the Court
may
find that the plaintiffs had failed to comply with the provisions in
sec 3, read with sec 4, of Act 40 of 2002 (
‘the
Act”
),
that such failure be condoned by this Court. Mr Potgieter has
submitted that, in the context of the provisions in the Act, such
a
proposed amendment is incompetent in law. Mr Van Niekerk, on the
other hand, has adopted the position that a litigant can indeed
seek
such relief in his pleadings and at a subsequent trial. It is this
particular dispute which requires adjudication herein,
for the
simple reason that it will guide the parties, more particularly the
plaintiffs, in their further conduct of this matter.
The
plaintiffs’ claim is a delictual claim and concerns the alleged
negligence of the second defendant (a member of the SA Police
Service), which negligence allegedly enabled the third defendant to
come into unlawful possession of certain firearms belonging
to the
SAPS and allegedly caused the subsequent shooting of various members
of the public (two of them fatally) by the third defendant
with the
very same firearms. The averment is made in par. 24 of the
plaintiffs’ particulars of claim as it presently stands,
that the
first and second plaintiffs have properly complied with the
provisions of sec 3, read with sec 4 of the Act.
This has
been denied by the defendants in their plea and they have continued
to place same in issue throughout and more particularly
at the
pre-trial conference held in terms of Rule 37.
The
plaintiffs now seek to introduce through their proposed amendments
an alternative averment which reads as follows (I have translated
it
from Afrikaans):
“
That
paragraph 24
in
the particulars of claim be amended by the insertion of the
following:
‘
,
alternatively
and insofar as the Court may find that the first and second
plaintiffs had failed to comply with the aforementioned
provisions,
the first and second plaintiffs aver that:
24.1 the debt in respect of their
claims had not been extinguished by prescription;
24.2 good cause exists for their
non-compliance; and
24.3 the defendants have not been
prejudiced at all by any non-compliance on the part of the
plaintiffs;
and that the
Court is empowered to condone such non-compliance.’
”
A
similar amendment to introduce an averment in the alternative is
sought in respect of paragraph 26 of the particulars of claim
with
regard to the third, fourth and fifth plaintiffs.
A corresponding
amendment of the prayers is sought in terms whereof the Court is
asked to grant condonation of the various plaintiffs’
con-compliance with the said provision.
Mr Potgieter has
submitted that, as I have indicated above, it is not competent in
law to move an amendment regarding the notice
requirements as the
plaintiffs seek to do, due to the provisions contained in sec 3
of the Act. He has submitted that a substantive
application on
notice of motion supported by an affidavit/s should be brought for
condonation. Mr Van Niekerk, on the other hand,
has submitted that
such an application can indeed be made through a litigant’s
particulars of claim, supported by oral evidence
during the trial.
The relevant parts of
sec 3 reads as follows:
“
3
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
(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) ……
(3) ……
(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) 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 the
legal proceedings in question,
on such conditions regarding notice to
the organ of state as the court may deem appropriate.”
I
have been referred to and could find only one case in which
reference has been made to these provisions of the Act namely
Air-conditioning
Design v Minister of Public Works, Gauteng 2005(4) SA 103 (T)
at
108 I – 109 A. A mere reference is made to the
provisions of sec 3(4), quoted above, and this particular case does
therefore not assist in the present matter.
It
seems to me that, strictly speaking and on a mere reading of the
provisions contained in sec 3(4), a substantive application
brought on notice of motion with supporting affidavit/s is generally
required in such instances where a creditor seeks condonation
of
his/her/its failure to serve a proper notice in terms of sec 3(2)(a)
of the Act. Such substantive application should usually
be brought
even before an action is instituted. In the present case, however,
in the interests of justice I did not deem it proper
to deny the
plaintiffs their right to access to justice and to close the doors
of the court to them based on a mere formalism and
technicality. In
this case, based on the pleadings as they presently stand, I am of
the
prima
facie
view
that the plaintiffs have a triable case in law and on the facts
pleaded, and it would therefore be utterly improper to close
the
doors of the court to them. Mr Van Niekerk has correctly pointed
out that the Act had seen the light of day as a consequence
of the
decision of the Constitutional Court in
Moise
v Greater Germiston TLC: Minister of Justice intervening 2001(4)
SA 491 (CC)
where sec 2(1)(a) of the Limitation of Legal Proceedings
(Provincial and Local Authorities) Act, 94 of 1970 was declared

unconstitutional. The
ratio
decidendi
of
the Court was that the limitation contained in sec 2(1)(a) of
that Act unreasonably limited the rights of prospective litigants
to
approach a court for adjudication of their claims and therefore the
right to access to justice.
In
this context therefore, I agree with Mr Van Niekerk that the Act has
as its objective the expansion of the rights of a litigant
to
approach Court, and not the limitation thereof.
In
summary therefore, I am of the view that, generally speaking, an
application as provided for in sec 3(4) of the Act, has
to be
brought on notice of motion supported by affidavit/s, preferably
prior to an action to be instituted against an organ of
State. In
the present case, however, I take the view that the plaintiffs are
entitled to bring such application at the trial,
supported by oral
and documentary evidence where applicable. I also take the view
that, once the amendment is granted, the issue
of compliance with
the notice requirements and, if necessary, condonation, should be
finalised first and foremost before the trial
on the merits itself
proceed.
_______________
SA MAJIEDT
JUDGE
ADV
JG VAN NIEKERK SC
ON BEHALF OF THE PLAINTIFFS
INSTRUCTED
BY ELLIOT MARIS WILMANS & HAY
ADV
D POTGIETER SC AND ADV J HENRIQUES
ON BEHALF OF DEFENDANTS 1 AND 2
INSTRUCTED
BY TOWELL AND GROENEWALDT