President of the Republic of South Africa and Another v Tembani and Others (CCT 162/22) [2024] ZACC 5 (6 May 2024)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 162/22

In the matter between:


PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA First Applicant

GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA Second Applicant

And

LUKE M TEMBANI First Respondent

LMT ESTATES (PVT) LIMITED Second Respondent

WYNAND HART Third Respondent

QUEENSDALE ENTERPRISES (PVT) LIMITED Fourth Respondent

MADODA ENTERPRISES (PVT) LIMITED Fifth Respondent

KLIPDRIFT ENTERPRISES (PVT) LIMITED Sixth Respondent

MIKE CAMPBELL (PVT) LIMITED Seventh Respondent

RICHARD THOMAS ETHERIDGE Eighth Respondent

ANDREW KOCKOTT Ninth Respondent

TENGWE ESTATES (PVT) LIMITED Tenth Respondent

CHRISTOPHER MELLISH JARRETT Eleventh Respondent

STUNULA RANCHING (PVT) LIMITED Twelfth Respondent

LACHABI RANCH (PVT) LIMITED Thirteenth Respondent

2

LARRY CUMMING Fourteenth Respondent

FRANCE FARM (PVT) LIMITED Fifteenth Respondent

MICHAEL IAN PATRICK ODENDAAL Sixteenth Respondent

DEBORAH LOUISE ODENDAAL Seventeenth Respondent

GRASSFLATS FARM (PVT) LIMITED Eighteenth Respondent

MURIK MARKETING (PVT) LIMITED Nineteenth Respondent

GIDEON STEPHANUS THERON Twentieth Respondent

EBEN HAESER (PVT) LIMITED Twenty-First Respondent

EDEN FARM (PVT) LIMITED Twenty-Second Respondent

PETER HENNING Twenty-Third Respondent

CHIREDZI RANCHING (PVT) LIMITED Twenty-Fourth Respondent

BATALEURS PEAK FARM HOLDINGS Twenty-Fifth Respondent
(PVT) LIMITED



Neutral citation: President of the Republic of South Africa and Another v Tembani
and Others [2024] ZACC 5

Coram: Zondo CJ, Dodson AJ, Kollapen J, Mathopo J, Mhlantla J,
Rogers J, Schippers AJ and Tshiqi J


Judgment: Rogers J (unanimous)

Heard on: 7 November 2023

Decided on: 6 May 2024

Summary: Prescription — delictual claims for damages — unconstitutionality
of President’s conduct a component of alleged wrongfulness —
whether completion of cause of action delayed until
Constitutional Court makes or der confirming or declaring
unconstitutionality of President’s conduct
3

Prescription — whether institution of review application by third
party in respect of President’s unconstitutional conduct interrupted
prescription in respect of plaintiffs’ damages claims — whether
intervention by certain plaintiffs in the review interrupted
prescription in respect of the damages claims




ORDER



On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal succeeds.
3. The orders of the High Court and Supreme Court of Appeal are set aside.
4. The High Court’s order is replaced with the following order:
“(a) The plaintiffs’ application for condonation is dismissed.
(b) Consequently, the plaintiffs’ action is dismissed.”
5. The parties shall bear their own costs in the High Court, the Supreme
Court of Appeal and this Court.



JUDGMENT




ROGERS J (Zondo CJ, Dodson AJ, Kollapen J, Mathopo J, Mhlantla J, Schippers AJ
and Tshiqi J concurring):


Introduction
[1] This matter has its genesis in Zimbabwe’s controversial land redistribution
programme. Land owned or farmed by the respondents was taken without
ROGERS J
4
compensation under that programme . A constitutional amendment in Zimbabwe
prevented them from seeking legal redress there. For reasons which will become
apparent, they now look to the applicants, the President of the Republic of South Africa
and the Government of the Republic of South Africa, for recompense. They do so in a
damages action pending in the High Court of South Africa, Gauteng Division, Pretoria
(High Court). The respondents , 25 in all, are the plaintiffs in th at action. For
convenience, I shall refer to the parties as they are in the action.

[2] Together with their action, which they instituted in April 2019, the plaintiffs
served an application to condone, to the extent necessary, their failure timeously to serve
the notice required by sectio n 3(1) of the Institution of Legal Proceedings against
Certain Organs of State Act1 (Institution Act). After several amendments were made to
the particulars of claim, the defendants delivered an exception to the amended
particulars of claim. These exceptions are summarised later in this judgment.

[3] The condonation application and exception were argued together. The
High Court upheld the exception in part. 2 It made no order on the condonation
application. With leave granted by the High Court, the plaintiffs appealed and the
defendants cross -appealed to the Supreme Court of Appeal. That Court upheld the
plaintiffs’ appeal and struck the defendants’ cross-appeal from the roll.

[4] The defendants now seek leave to appeal to this Court. They contend that the
High Court and Supreme Court of Appeal should have refused the condonation
application because the debts which the plaintiffs were seeking to enforce had
prescribed. They also contend that the High Court and Supreme Court of Appeal should
have upheld the grounds of exception which asserted that the amended particulars of
claim lacked averments to show that (a) the defendants owed the plaintiffs a legal duty

1 40 of 2002. The relevant parts of section 3 of this Act are quoted at [68] below.
2 Tembani v President of the Republic of South Africa , unreported judgment of the North Gauteng High Court,
Pretoria, Case No 24552/2019 (18 December 2020).
ROGERS J
5
to prevent the damages they allegedly suffered or (b) the defendants’ conduct was the
factual or legal cause of the damages.

Factual background
[5] The 25 plaintiffs owned farms or conduct ed farming operations in Zimbabwe.
Ten of the plaintiffs are private individuals, four of whom are Zimbabwean citizens, the
other six being South African citizens who h eld interests in farming operations in
Zimbabwe. The remaining 15 plaintiffs are Zimbabwean companies.

[6] In terms of section 16B of Zimbabwe’s Constitution, inserted with effect from
16 September 2005, agricultural land became liable to be confiscated without
compensation and the jurisdiction of the Zimbabwean courts to entertain challenges to
such confiscations was ousted.3 The plaintiffs claim to have suffe red financial losses
as a result of confiscations under that provision . The 10 plaintiffs who are private
individuals also consider themselves entitled to damages for pain and suffering because
of the way they were treated during the confiscations . Such treatment allegedly
included assaults and violent evictions.

[7] Because of the ousting of the jurisdiction of the Zimbabwean courts, some of the
plaintiffs pursued claims against Zimbabwe in the Southern African Development
Community (SADC) Tribunal (Tribuna l). SADC was established by treaty in
August 19924 (SADC Treaty). Zimbabwe was a founding member state. The Treaty
entered into force on 30 September 1993. South Africa acceded to the SADC Treaty in
August 1994.5


3 Section 16B was inserted into Zimbabwe’s Constitution by section 2 of the Constitution of Zimbabwe
Amendment (No 17) Act, 2005.
4 SADC Treaty, 17 August 1992.
5 Instrument of Accession, 29 August 1994.
ROGERS J
6
[8] Article 4 of the Treaty require s SADC and member states to act in accordance
with various principles, among them “human rights, democracy and the rule of law” .6
In terms of Article 6(1), member states must refrain from taking any measures “likely
to jeopardise the sustenance of its prin ciples, the achievement of its objectives and the
implementation of the provisions of this Treaty”. Article 6(2) prohibits discrimination
against any person on various listed grounds, including race.

[9] Article 16(1) of the Treaty required the Tribunal to b e established to ensure
adherence to and the proper interpretation of the Treaty. In terms of Article 16(2), the
composition, powers, functions, procedures and other related matters governing the
Tribunal were to be prescribed in a protocol adopted by the Summit, being SADC’s
supreme policy-making institution and comprising the Heads of State or Government s
of member states.7

[10] In August 2000 the Summit adopted a protocol to establish the Tribunal 8
(2000 Protocol). In terms of Article 14 of the 2000 Protocol, one of the matters over
which the Tribunal had jurisdiction was the interpretation and application of the
SADC Treaty. In terms of Article 15, the Tribunal had jurisdiction over disputes
between states and between natural or legal persons and states. In the case of natural or
legal persons, this right of access was subject to exhausting remedies under domestic
jurisdiction.

[11] In order to come into force, the 2000 Protocol had to be ratified by two-thirds of
the member states. Although this did not happen, the 2000 Protocol was integrated into
the SADC Treaty with effect from 14 August 2001 by an amendment agreed to by the
requisite three-quarters of member states.9

6 Article 4(c) of the SADC Treaty.
7 The establishment and functions of the Summit are provided for in Articles 9(1)(a) and 10 of the SADC Treaty.
8 Protocol on Tribunal in the Southern African Development Community, 7 August 2000.
9 Agreement Amending the Treaty of the Southern African Development Community, 14 August 2001. Article 18
of this Agreement amended Article 16(2) of the Treaty by stating that the Protocol formed an integral part of the
Treaty.
ROGERS J
7

[12] Five of the plaintiffs10 were among 79 claimants whose claims were adjudicated
by the Tribunal in a decision delivered on 28 November 2008 11 (Campbell decision).
The Tribunal held that it had jurisdiction; that the claimants had been denied access to
the Zimbabwean courts; that they had been discriminated against on grounds of race;
and that fair compensation was payable to them for land compulsorily acquired by
Zimbabwe. The Tribunal held, further, that Zimbabwe was in breach of its obligations
under Articles 4(c) and 6(2) and that section 16B of Zimbabwe’s Constitution breached
Articles 4(c) and 6(2). Zimbabwe was directed to take all necessary measures to protect
the possession, occupation and ownership of the claimants’ land, except for three named
claimants who had already been evicted and to whom Zimbabwe was directed to pay
fair compensation.12

[13] Zimbabwe did not comply with the Campbell decision. Confiscations and
evictions continued. Two of the 79 claimants 13 approached the Tribunal for further
relief. On 5 June 2009, the Tribunal ruled that Zimbabwe had failed to comply with the
Campbell decision.14 The Tribunal decided to report its finding to the Summit pursuant
to Article 32(5) of the 2000 Protocol.15


10 These five plaintiffs are the present seventh, eighth, tenth, eleventh and fifteenth respondents, namely
Mike Campbell (Pvt) Ltd , Mr Richard Thomas Etheridge, Tengwe Estates (Pvt) Ltd, Mr Christopher Mellish
Jarrett and France Farm (Pvt) Ltd. Another claimant, Mr William Michael Campbell, was the main shareholder
and director of Mike Campbell (Pvt) Ltd. He died in April 2011, allegedly due to complications from the injuries
sustained at the hands of farm invaders and agents of the Zimbabwean Government. The numbering of the
respondents in the present proceedings is identical to their numbering as plaintiffs in the pending action.
11 Mike Campbell (Pvt) Ltd v Republic of Zimbabwe (2/2007) [2008] SADCT 2.
12 These three claimants are the present tenth , eleventh and fifteenth respondents – Tengwe Estates (Pvt) Ltd,
Mr Christopher Mellish Jarrett and France Farm (Pvt) Ltd.
13 These two claimants were Mr Campbell (see above n 10) and Mr Etheridge, the present eighth respondent.
14 Campbell v Republic of Zimbabwe (03/2009) [2009] SADCT 1.
15 Article 32(5) stated that, if the Tribunal established the existence of a failure by a member state to comply with
a decision of the Tribunal, “it shall report its finding to the Summit for the latter to take appropriate action”.
ROGERS J
8
[14] On 14 August 2009 the Tribunal handed down its decision in a claim brought by
the present first respondent16 (Tembani decision). The Tribunal held that the claimant
had exhausted all domestic remedies; that he had been denied access to the Zimbabwean
courts; that Zimbabwe was in breach of its obligations under Articles 4(c) and 6(1) of
the Treaty; that the sale in execution and transfer of the claimant’s farm were illegal and
void; and that his title to the property remained valid. Zimbabwe was directed to take
various measures to safeguard the claimant’s position in relation to the property.

[15] Zimbabwe continued to act in defiance of the Campbell and Tembani decisions.
Zimbabwe asserted that the 2000 Protocol was not binding on it because it had not been
ratified by the requisite two -thirds of the total SADC membership o r by Zimbabwe
itself.

[16] Certain of the claimants in the Campbell matter applied to the High Court in
South Africa to have the Campbell decision recognised and enforced in terms of
Article 32 of the 2000 Protocol. 17 On 13 January 2010, the High Court authorised the
issuing of the enforcement application and gave directions for service. 18 On
25 February 2010, the High Court ordered, in default of opposition by Zimbabwe, that
the Tribunal’s decisions in Campbell, delivered on 28 November 2008 and 5 June 2009,
were to be recognised and enforced in terms of Article 32.19

[17] Zimbabwe applied for the rescission of the High Court’s orders of
13 January 2010 and 25 February 2010. On 6 June 2011 the High Court dismissed the

16 Tembani v Republic of Zimbabwe (07/2008) [2009] SADCT 3. The claimant was the present first respondent,
Mr Luke M Tembani. He is the owner of the present second respondent, LMT Estates (Pvt) Ltd.
17 Article 32(1) provided that the law and rules of civil procedure for the registration and enforcement of foreign
judgments in force in a territory of the state in which e nforcement is sought shall govern the enforcement of
decisions of the Tribunal. Article 32(2) requires states and institutions of SADC to take forthwith all measures
necessary to ensure execution of decisions of the Tribunal.
18 Fick v Government of the Re public of Zimbab we, unreported judgment of the North Gauteng High Court,
Pretoria, Case No 77880/2009 (13 January 2010).
19 Fick v Government of the Republic of Zimbab we, unreported judgment of the North Gauteng High Court,
Pretoria, Case No 77881/2009 (25 February 2010).
ROGERS J
9
rescission applications. 20 On 20 September 2012, the Supreme Court of Appeal
dismissed Zimbabwe’s appeal against the High Court’s judgment.21

[18] A further appeal by Zimbabwe to this Court was dismissed on 27 June 2013.22
This Court held that:
(a) the SADC Treaty as amended was binding o n South Africa and
Zimbabwe;
(b) Zimbabwe, through its agreement to be bound by the 2000 Protocol, had
waived its right to rely on sovereign immunity from the jurisdiction of
South African courts, which it would otherwise have enjoyed in terms of
the Foreign States Immunities Act;23
(c) although the Tribunal’s decision did not fall within the scope of the
Enforcement of Foreign Civil Judgments Act,24 it should be recognised
under our common law as developed so as to include not only foreign
domestic courts but also bodies such as the Tribunal;
(d) the Tribunal had had jurisdiction to make its decision in the Campbell
case; and
(e) both Zimbabwe and South Africa were duty -bound to assist in the
execution of the Tribunal’s decision.

[19] In the meanwhile, non -compliance with decisions of the Tribunal was being
considered by the SADC Summit, which commissioned a report by SADC’s Committee
of Ministers of Justice and Attorneys -General. The initial outcome of these
developments was a decisio n by the Summit on 20 May 2011 not to reappoint the
Tribunal’s members whose terms of office had expired or w ere soon to expire . The
effect of this decision was to suspend the operations of the Tribunal. South Africa’s

20 Government of the Republic of Zimbabwe v Fick [2011] ZAGPPHC 76.
21 Government of the Republic of Zimbabwe v Fick [2012] ZASCA 122.
22 Government of the Republic of Zimbabwe v Fick [2013] ZACC 22; 2013 (5) SA 325 (CC); 2013 (10) BCLR
1103 (CC).
23 87 of 1981.
24 32 of 1988.
ROGERS J
10
Head of State at that time was Pres ident Zuma. Although he was not present at the
Summit meeting, he supported these decisions through representation.

[20] At the time of the Summit’s effective suspension decision on 20 May 2011, the
South African courts had not yet adjudicated Zimbabwe’s rescission applications.
Zimbabwe’s attempts at rescission finally failed in this Court on 27 June 2013. On
18 August 2014, the SADC Summit resolved to adopt a new protocol25 (2014 Protocol)
in place of the 2000 Protocol. President Zuma was present at this Summit meeting. He
supported the resolution and signed the 2014 Protocol.

[21] In terms of Article 33 of the 2014 Protocol, the Tribunal’s jurisdiction was
confined to the interpretation of the SADC Treaty and Protocols in disputes between
member states. In other words, the right of private parties to bring disputes before the
Tribunal was abolished. In terms of Article 48, the 2000 Protocol was to be repealed
with effect from the date of the coming into force of the 2014 Protocol , something that
would occur 30 days after the deposit of instruments of ratification by two-thirds of the
member states.26

[22] In March 2015 the Law Society of South Africa (LSSA) launched an application
in the High Court challenging the lawfulness of President Zuma’s participation in the
adoption and signing of the 2014 Protocol. In July 2015, five of the present
respondents27 were among a group of persons who applied to join as applicants in
LSSA’s application. Their intervention applic ation was granted. The present first
respondent, Mr Tembani, signed the founding affidavit on behalf of this group on
21 July 2015.


25 Protocol on the Tribunal in the Southern African Development Community, 18 August 2014.
26 See Article 53 of the 2014 Protocol.
27 The first, eighth, tenth, eleventh and fifteenth respondents.
ROGERS J
11
[23] On 1 March 2018 a Full Court of the High Court delivered judgment. 28 As part
of its order, the High Court declared that President Zuma’s participation in suspending
the SADC Tribunal in 2011 and his subsequent signing of the 2014 Protocol had been
unlawful, irrational and thus unconstitutional. In terms of section 172(2)(a) of the
Constitution, the High Court referred its order to this Court for confirmation.

[24] This Court’s judgment in the confirmation application was delivered on
11 December 201829 (Law Society). The Court rejected a contention by the President
that the LSSA’s application was premature. This argument was bas ed on the fact that
the Protocol had not yet been approved by South Africa’s Parliament 30 and had not yet
been signed by the prescribed number of states or ratified by any of the member states.31

[25] On the merits of the case, this Court spoke of the events cul minating in the
2014 Protocol as—

“a master plan that was devised by the Summit at the instance of the Republic of
Zimbabwe. Clearly, Zimbabwe did not want to comply with the unfavourable
decisions made against it by the Tribunal. It then crafted a strategy that would be fatal
to the possibility of the Tribunal ever embarrassing it again.
In all of the above efforts to paralyse the Tribunal, Zimbabwe had a willing ally in
South Africa, as represented by our President. The non -appointment of new Judges
and non-renewal of expired terms was a scheme designed to ensure that the Tribunal
would not function because it would not be quorate. Added to this mix was the decision
to impose a moratorium on the referral of individual disputes to the Tribunal and the
signing of the Protocol that seeks to essentially make this state of affairs permanent.”32

28 Law Society of South Africa v President of the Republic of South Africa [2018] ZAGPPHC 4; [2018] 2 All SA
806 (GP); 2018 (6) BCLR 695 (GP).
29 Law Society of South Africa v President of the Republic of South Africa [2018] ZACC 51; 2019 (3) SA 30 (CC);
2019 (3) BCLR 329 (CC) (Law Society).
30 As required by section 231(2) of the Constitution, which provides that “[a]n international agreement binds the
Republic only after it has been approved by r esolution in both the National Assembly and the National Council
of Provinces, unless it is an agreement referred to in subsection (3)”.
31 Law Society above n 29 at paras 21-2.
32 Id at paras 44-5.
ROGERS J
12

[26] This Court held that, because the 2000 Protocol had been integrated into the
SADC Treaty, it could only be tampered with in terms of the provisions of the Treaty
that regulate its amendment. This could not properly be done by a protocol. 33 By
supporting the 2011 suspension decision and by signing the 2014 Protocol,
President Zuma was held to have acted irrationally34 and contrary to South Africa’s
international law o bligations under the Treaty .35 His conduct was also found to have
been unlawful in that “he failed to act in good faith and in pursuit of the object and
purpose of the Treaty we have bound ourselves to”. 36 President Zuma’s signing of the
2014 Protocol was held to be unconstitutional for the further reason that it was contrary
to his obligation to refrain from action undermining our Bill of Rights and international
law obligations.37

[27] This Court thus confirmed the High Court’s order of constitutional invalidi ty in
the following terms:

“1.1 The President’s participation in the decision -making process and his own
decision to suspend the operations of the [Tribunal] are unconstitutional,
unlawful and irrational.
1.2 The President’s signature of the [2014 Protocol] is unconstitutional, unlawful
and irrational.
1.3 The President is directed to withdraw his signature from the 2014 Protocol.”38

[28] Mr Ramaphosa had succeeded Mr Zuma as the country’s President on
15 February 2018, two weeks before the High Court delivered judgment in Law Society.
In ordering the President to withdraw his signature from the 2014 Protocol, this Court

33 Id at para 49.
34 Id at paras 70-1.
35 Id at para 53.
36 Id at para 56.
37 Id at paras 77-85.
38 Id at para 97.
ROGERS J
13
noted that one President is a successor in title to another and the obligations are similarly
transferable from one to the other. Th e relevant presidential duties were not
“incumbent-specific”.39

Litigation history
Pre-litigation notices
[29] On 14 December 2018 the plaintiffs’ attorneys deliver ed to the President and
State Attorney a notice in terms of section 3(1)(a) of the Institution A ct, giving notice
that 10 of the present respondents intended to institute legal proceedings against the
President and Government for damages. The proposed claims were summarised in the
notice. On 14 January 2019 the State Attorney replied that the Presi dent, while not
acknowledging or admit ting the claims , contended that the notice had not been sent
within the period prescribed by the Institution Act.

[30] On 15 January 2019 the plaintiffs’ attorneys served a supplementary notice in
terms of section 3(1)(a), now identifying all the present respondents as claimants.40 This
notice received a similar response from the State Attorney.

The action
[31] The plaintiffs served their summons on 9 April 2019. They simultaneously
served an application for condonation, insofar as needs be, for their failure to comply
timeously with section 3(1) (a) of the Institution Act. In terms of section 3(2), such a
notice must be served “within six months from the date on which the debt became due”.
The plaintiffs’ primary contention was that they did not need condonation because the
debts only became due when this Court delivered judgment in Law Society, in other
words, that this Court’s judgment was necessary to complete their causes of action.


39 Id at para 94.
40 The supplementary notice added the various Zimbabwean companies with which the persons identified in the
initial notice were associated and apportioned the claimed damages between the individuals and the companies.
ROGERS J
14
[32] The defendants filed an affidavit opposing condonation, to which the plaintiffs
replied. Among other grounds of opposition, the defendants disputed that this Court’s
judgment in Law Society was an element of the plaintiffs’ cause s of action . They
contended that the debts which the plaint iffs were seeking to enforce became due on
18 August 2014 (when President Zuma signed the 2014 Protocol) or by the latest on
21 July 2015 (when Mr Tembani signed the founding affidavit in support of
intervention in the LSSA’s application). This meant, so the defendants contended, that
the debts became prescribed on 18 August 2017 or 21 July 2018. From this it followed,
so the defendants submitted, that in terms of section 3(4)(b)(i) of the Institution Act, the
High Court did not have the power to condone non-compliance with the six-month time
limit for serving the section 3(1)(a) notice.41

[33] The opposing affidavit criticised the particulars of claim in certain respects,
which led to amendments in October 2019 and January 2020. In February 2020, the
defendants served a notice in terms of rule 23(1) of the Uniform Rules of Court ,
identifying various respects in which the amended particulars of claim w ere said to be
vague and embarrassing and inviting the plaintiffs to remove the causes of complaint.
When no further amendments were forthcoming, the defendants on 18 March 2020
served an exception setting out five grounds of exception.

[34] In broad summary, the amended particulars of claim ma de the following
allegations:
(a) Prior to the adoption of the 2014 Protocol, all the plaintiffs had claims
justiciable by the Tribunal.
(b) The plaintiffs’ claims in Zimbabwe ’s courts were ousted, so they could
only seek relief against Zimbabwe in the Tribunal.
(c) Certain of the plaintiffs obtained awards in their favour from the Tribunal
in the Campbell and Tembani cases.

41 The relevant provisions of section 3 of the Institution Act are quoted in [68] of this judgment.
ROGERS J
15
(d) The remaining plaintiffs would have instituted claims in the Tribunal and
succeeded but for the SADC Summit’s 2011 suspension of the Tribunal
and the Summit’s adoption of the 2014 Protocol.
(e) The plaintiffs highl ight key findings made by the High Court and
this Court in Law Society.
(f) In being party to the 2011 and 2014 decisions, President Zuma failed to
act in good faith within the scope of section 231(1) of the Constitution
and with gross disregard for the violation of the plaintiffs’ human rights.
(g) The 2011 suspension decision and the adoption of the 2014 Protocol
required unanimous consent. Accordingly, and but for President Zuma’s
participation, the abolition of individual access to the Tribunal would not
have occurred.
(h) President Zuma, representing the South African Government, acted
wrongfully and unlawfully and with a deliberate, reckless or grossly
negligent disregard for the rights of those affected by the abolition of
individual access to the Tribunal.
(i) In s o acting, President Zuma, representing the South African
Government, grossly violated his constitutional duties, particularly
section 231(1)42 read with sections 143 and 7(2)44 of the Constitution and
infringed the plaintiffs’ constitutional rights to propert y and access to
justice.

42 Section 231(1) provides: “The negotiating and signing of all international agreements is the responsibility of
the national executive.”
43 Section 1 reads:
“The Republic of South Africa is one, sovereign, democratic state founded on the following
values:
(a) Human dignity, the achievement of equality and the advancement of human
rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the Constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and
a multi -party system of democratic government, to ensure accountability,
responsiveness and openness.”
44 Section 7(2) provides: “The state must respect, protect, promote and fulfil the rights in the Bill of Rights.”
ROGERS J
16
(j) As a result, the plaintiffs suffered pecuniary loss and the individual
plaintiffs also suffered damages for pain and suffering. The claimed
damages total R1 957 578 594, of which R12 million represents general
damages.45
(k) If it is found that common law remedies do not allow the claims for
general damages and that the common law should not be developed to
allow such damages, these amounts are claimed as constitutional damages
as just and equitable relief.
(l) The President and Government are jointly and severally liable to pay these
damages.
(m) There has been compliance with the Institution Act.

[35] The defendants advanced the following five grounds of exception:
(a) Ground 1 (causation exception): The particulars of claim lacked sufficient
averments to establish that the defendants were the cause of the plaintiffs’
alleged losses . In this regard, the plaintiffs did not allege that
President Zuma’s signing of the 2014 Protocol brought it into force and it
has not yet entered into force. On 11 Dece mber 2018 this Court ordered
the President to withdraw his signing of the Protocol.
(b) Ground 2 (legal duty exception) : The plaintiffs failed to plead on what
basis President Zuma’s conduct was delictually wrongful and insufficient
facts were pleaded to susta in any such duty. President Zuma’s conduct
was not alleged to have been dishonest or fraudulent. The majority of the
plaintiffs were Zimbabwean citizens and companies, and it was not
alleged on what basis the President owed a legal duty to foreigners not to
cause economic loss outside of South Africa.
(c) Ground 3: The particulars of claim d id not disclose a basis for the
contention that Mr Tembani’s company, the present second respondent,

45 R1 200 000 for each of the 10 individual plaintiffs.
ROGERS J
17
is entitled to the benefit of the Tribunal’s decision in favour of
Mr Tembani.
(d) Ground 4: The plaintiffs’ claims included claims for loss of income, loss
of movable property and for pain and suffering, which claims were not
ousted by section 16B of the Zimbabwean Constitution.
(e) Ground 5: The basis on which such damages were claimed was unclear
and there were insufficient averments to support the appropriateness of
developing the common law or of making an award of constitutional
damages.

[36] The condonation application and exception were argued together. Since neither
side is pursuing an appeal in respect of grounds 3, 4 and 5 of the exception, I will not
deal with those grounds.

High Court’s judgment
[37] The High Court (Van Oosten J) agreed with the plaintiffs that this Court’s
Law Society judgment completed their causes of acti on. The plaintiffs were neither
required nor able to proceed with their action until a court by judicial review had set
aside the President’s participation in the 2011 suspension decision and adoption of the
2014 Protocol. By virtue of section 172(2)(a) of the Constitution, a declaration that
President Zuma acted unconstitutionally had no effect until confirmed by this Court.46
The plaintiffs thus did not need condonation.

[38] In regard to the causation exception, the High Court considered both factual and
legal causation. On factual causation, the High Court considered that the pleaded facts
did not contain sufficient averments to show “a causal or proximate cause ” between
President Zuma’s conduct and the alleged damages. The SADC Treaty allowed for the

46 Section 172(2)(a) provides that the Supreme Court of Appeal and the High Court (and o ther courts of similar
status) may make an order concerning the constitutional validity of any conduct of the President, “but an order of
constitutional invalidity has no force unless it is confirmed by the Constitutional Court”.
ROGERS J
18
dissolution of the Tribunal by majority vote. Even if President Zuma had opposed
dissolution, this would thus have made no difference.

[39] Furthermore, whatever the effect of President Zuma’s signing of the
2014 Protocol may have been, this Court ordered the President to withdraw the
signature, which in fact occurred. 47 This, so the High Court reasoned, “thwarted the
‘conspiracy’ to curtail the jurisdiction of the Tribunal”. Formal ratification of the
2014 Protocol in any ev ent never happened. The High Court thus uph eld the factual
causation exception.

[40] On legal causation, the High Court said that whether a defendant’s conduct is
too remote for legal liability to ensue is a flexible test, “assessed in the light of what
legal policy, reasonability, fairness and justice require”. The High Court referred to
Burmilla Trust,48 where Tuchten J dealt with an exception to claims for damages arising
from President Zuma’s participation in dismantling the Tribunal. Tuchten J considered
that “morality, the convictions of the South African community and policy do not
require that South Africa should be held liable to compensate a non-national where the
South African Government breached international law in circumstances such as the
present”.49 The High Court in the present case agreed with Tuchten J and thus upheld
the legal causation exception in relation to the 19 plaintiffs who are Zimbabwean
citizens or Zimbabwean companies.

[41] In regard to the legal duty exception, the High Court referr ed to this Court’s
judgment in Steenkamp,50 where it was said, among other things, that (a) not every
breach of a public law duty causing financial loss is equivalent to unlawfulness in a

47 The fact that President Ramaphosa caused the President’s signature to be withdrawn from the 2014 Protocol
did not form part of the pleadings, but the case appears to have been argued on the basis of an acceptance that this
did indeed occur. According to public reports, this occurred during August 2019 at the 39th SADC Summit.
48 Trustees for the time being of the Burmilla Trust v Van Zyl [2020] ZAGPPHC 802; [2021] 1 All SA 578 (GP).
49 Id at para 67.
50 Steenkamp N.O. v Provincial Tender Board, Eastern Cape [2006] ZACC 16; 2007 (3) SA 121 (CC); 2007 (3)
BCLR 300 (CC).
ROGERS J
19
delictual liability sense 51 and (b) there were compelling public consi derations for not
imposing delictual liability for “incorrect or negligent but honest decisions”, though
different public policy considerations might apply to such a decision “made in bad faith
or under corrupt circumstances or completely outside the legit imate scope of the
empowering provision”.52

[42] The High Court considered that the plaintiffs’ allegations that President Zuma
failed to act in good faith within the scope of section 231(1) and that he displayed a
“deliberate, reckless or grossly negligent disregard” for the rights of those affected by
the abolition of individual access to the Tribunal would, if proved, deprive the
defendants of their Steenkamp immunity. This was buttressed, in the High Court’s
view, by the fact that in Law Society this Court found that the President had not acted
in good faith and that the exercise of his power had fallen outside the legitimate scope
of section 231(1) of the Constitution. The High Court thus rejected the legal duty
exception.

[43] For the sake of completeness, I record that the High Court considered that
ground 3 of the exception should more appropriately be dealt with in pre -trial
procedures; and rejected grounds 4 and 5 of the exception.

[44] Paragraphs 1 to 4 of the High Court’s order dealt with the exceptions.
Paragraph 5 stated, “[n]o order is made as to the costs of the condonation application
and the exception”. In terms of paragraph 6, the plaintiffs were granted leave to amend
their particulars of claim by delivering a notice of amendment by a specified date.

[45] The High Court granted the plaintiffs and defendants leave to appeal and
cross-appeal to the Supreme Court of Appeal. It did so on terms contained in a draft
order to which the parties had agreed. The High Court stated that it fully associated

51 Id at para 37.
52 Id at para 55(a).
ROGERS J
20
itself with the draft order. Paragraphs 3, 4 and 5 of the order granting leave to appeal
read:

“3. The defendants are given leave to appeal to the Supreme Court of Appeal
against the order to the extent that the Court did not grant an order dismissing
the plaintiffs’ condonation application.
4. Subject to the right of either party to seek leave to appeal from the
Constitutional Court against a judgment by the Supreme Court of Appeal, the
defendants accept that the determination of the condonation application by the
Supreme Court of Appeal will finally determine the issue of whether the
plaintiffs’ claims have prescribed.
5. The plaintiffs and the defendants are granted leave to appeal to the Supreme
Court of Appeal against paragraph 5 of the order.”

The Supreme Court of Appeal’s judgment53
[46] The Supreme Court of Appeal’s approach to the exceptions was to postulate,
with reference in particular to this Court’s judgment in Fetal Assessment Centre,54 that
(a) there may be occasions when the question of the development of the
common law is better deferred until all the evidence has been heard ,
particularly where the factual situation is complex and the legal position
uncertain;
(b) the need to have regard to the facts of the case and a range of policy issues
militates against deciding, on exception, the viability of a claim based on
a novel legal duty; and
(c) a court must be satisfied that a novel claim is necessarily inconceivable
under our law, as potentially develope d under section 39(2) of the
Constitution, before it can uphold an exception premised on the
non-disclosure of a cause of action.


53 Tembani v President of the Republic of South Africa [2022] ZASCA 70; 2023 (1) SA 432 (SCA).
54 H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) SA 193 (CC); 2015 (2) BCLR 127 (CC).
ROGERS J
21
[47] As to the plaintiffs’ appeal against the High Court’s orders on the causation
exception, the Supreme Court of Appeal considered that ground 1 of the exception was
confined to factual causation and that the High Court had erred in dealing with legal
causation. As to factual causation, the High Court had, in the Supreme Court of
Appeal’s opinion, conflated questions of factual an d legal causation. In particular ,
“proximate cause” relates to legal causation. The upshot, in the Supreme Court of
Appeal’s view, was that the High Court’s judgment on the factual causation exception
could not be supported.

[48] In regard to the defendants’ cross-appeal on the legal duty exception, the
Supreme Court of Appeal relied on authority in that Court55 for the proposition that the
dismissal of an exception is not appealable as it does not finally dispose of the issue
raised by the exception.

[49] In regard to the defendants’ cross-appeal on the condonation issue, the Supreme
Court of Appeal reasoned that, since the High Court had made no order on the
condonation application, there was no relevant order against which the defendants could
appeal. The Supre me Court of Appeal inferred that the High Court had granted leave
to appeal to enable the defendants to challenge the High Court’s conclusion that the
plaintiffs’ claims had not prescribed. This was impermissible, said the Supreme Court
of Appeal, because an appeal lies only against a court’s order, not its reasons.
Furthermore, a special defence such as prescription should ordinarily be raised in a
special plea, which allows the plaintiff to neutralise the special plea by way of
permissible grounds of re plication. In the Supreme Court of Appeal’s view, the
High Court should, for these reasons, have refrained from entertaining what was in any
event a conditional condonation application.


55 In particular, Maize Board v Tiger Oats Ltd [2002] ZASCA 74; [2002] 3 All SA 593 (A) at para 14.
ROGERS J
22
[50] The Supreme Court of Appeal thus upheld the plaintiffs’ appeal against the
upholding of the causation exception and struck the defendants’ cross -appeal from the
roll.

Submissions in this Court on condonation and prescription
[51] For reasons that will become apparent , I shall only summarise the parties’
submissions on the related questions of condonation and prescription.

The applicants / defendants
[52] The defendants submit that the plaintiffs’ claims prescribed three years after
18 August 2014, when the Summit adopted the 2014 Protocol, and in any event not later
than three years after 21 July 2015, when the first plaintiff, Mr Tembani, made an
affidavit in support of the intervention of some of the plaintiffs in the LSSA’s
application. According to the defendants, that affidavit shows that at the latest by
21 July 2015, the plaintiffs had knowledge of the facts from which the defendants ’
alleged indebtedness arose.

[53] The defendants criticise the High Court’s reasoning on the basis that , according
to binding authority, including this Court’s decision in Mtokonya,56 a creditor need only
have knowledge of the relevant facts and that ignorance of legal conclusions is
irrelevant to the running of prescription. The alleged unconstitutionality and
unlawfulness of President Zuma’s conduct is a legal conclusion. This Court’s
declaration in Law Society was not a factor relevant to the running of prescription. A
creditor is not entitled to await binding judicial pronouncements before a debt becomes
due.

[54] As to the plaintiffs’ reliance, in the alternative, on the institution of the
Law Society application, or the intervention of some of the plaintiffs in that application,

56 Mtokonya v Minister of Police [2017] ZACC 33; 2017 (11) BCLR 1443 (CC); 2018 (5) SA 22 (CC) (Mtokonya).
ROGERS J
23
as an act of interruption in terms of section 15(1) of the Prescription Act ,57 the
defendants contend that the Law Society application was not one by which the plaintiffs
were claiming payment of the debts at issue in the action. The constitutional relief
claimed in Law Society was not a “debt” for purposes of t he Prescription Act. Unlike
Allianz,58 the declaratory relief sought in Law Society was not based on the same cause
of action as the claims advanced in the subsequent action. In Law Society, the Court
was not asked to determine that the President had any delictual liability to the plaintiffs.
The defendants submit that reliance on section 15(1) should fail for similar reasons as
in Saamwerk Soutwerke.59 In any event, say the defendants, this act of interruption
could only benefit the five plaintiffs who intervened in Law Society.

[55] The defendants submit that the Supreme Court of Appeal erred in concluding
that an appeal did not lie against the High Court’s decision on the plaintiffs’
condonation application. If condonation should have been refused on the basis that the
debts were presc ribed, the defendants were entitled to an order dismissing the
condonation application. The appeal to the Supreme Court of Appeal was aimed at
undoing the result of the High Court’s decision , which was final in effect . The
defendants argue that a litigant is entitled to appeal against the failure by a court of first
instance to grant an order that was prayed for and to which the litigant was entitled. In
that regard, they cite Public Protector,60 where this Court entertained an appeal against
the failure of the High Court to entertain the relief sought by amaBhungane as an
intervening claimant.

[56] As to whether prescription lent itself to determination on the papers, the
defendants argue that the Institution Act necessitate s such a determination . Citing

57 68 of 1969.
58 Cape Town Municipality v Allianz Insurance Co Ltd 1990 (1) SA 311 (C); [1990] 1 All SA 30 (C) (Allianz).
59 Saamwerk Soutwerke (Pty) Ltd v Minister of Mineral Resources [2017] ZASCA 56.
60 Public Protector v President of the Repub lic of South Africa [2021] ZACC 19; 2021 (6) SA 37 (CC); 2021 (9)
BCLR 929 (CC) (Public Protector).
ROGERS J
24
Links,61 they submit that , if a claimant needs to apply for condonation, the effect of
section 3(4)(b)(i) is that prescription has to be dealt with and determined as part of that
application.

The respondents / plaintiffs
[57] The plaintiffs support the High Court’s conclusion that this Court’s judgment in
Law Society completed their causes of action. President Zuma’s conduct remained of
full force and effect until the declaration of unconstitutionality was confirmed by this
Court. The invalidi ty of President Zuma’s signature to the 2014 Protocol was a
necessary element of the plaintiffs’ causes of action, something they would have to
prove at the trial. Until this Court confirmed the declaration of invalidity, the
High Court would have had to treat President Zuma’s conduct as constitutionally valid
and could thus not have determined the question of wrongfulness . The plaintiffs refer,
in that regard, to sections 167(4)(e), 167(5) and 172(2)(a) of the Constitution.62

[58] The plaintiffs point to the fact that it was only in the President’s answering
affidavit in Law Society that the President disclosed that the Summit operated on the
basis of consensus decision -making and that the 2014 Protocol was adopted
unanimously. The onus rested on the President to establish when prescription began to
run, including the date on which the plaintiffs acquired knowledge of the relevant facts.
The Supreme Court of Appeal was right, according to the plaintiffs, to defer the question
of prescription to the stage of a special plea in the action. This , so the plaintiffs argue,
causes the defendants no prejudice, because the defendants will be entitled to raise the
same defence in a plea – the issue is not res judicata (finally determined).

[59] The plaintiffs persist with their alternative argument that the Law Society
application interrupted the running of prescription . Invoking Allianz, they say that it
matters not that the plaintiffs who intervened in that case did not advance a monetary

61 Links v Member of the Executive Council, Department of Health, Northern Cape Province [2016] ZACC 10;
2016 (4) SA 414 (CC); 2016 (5) BCLR 656 (CC) (Links) at para 12.
62 These provisions are quoted in [87] below.
ROGERS J
25
claim. This Court’s declaration disposed of an element of the ir claims against the
defendants. The plaintiffs cite a Namibian case, Lisse,63 in support of the proposition
that an application for review relief c an interrupt prescription in respect of a delictual
claim arising from the conduct found in the review to have been unlawful.

The issues in this Court
[60] The main issues raised by this case, on the related questions of condonation and
prescription are these:
(a) Is this Court’s jurisdiction engaged?
(b) Is it in the interests of justice to grant leave to appeal?
(c) In regard to condonation and prescription:
(i) was the Supreme Court of Appeal right to hold that the High Court
made no appealable order?
(ii) if not, when did prescription start to run?
(iii) if prescription starte d to run on or before 21 July 2015 , did the
service of the Law Society application or the intervention
application interrupt the running of prescription?
(d) In regard to the factual causation exception (if it is reached), was the
High Court right to uphold this ground?
(e) In regard to legal causation (if it is reached):
(i) did the defendants’ exception cover legal causation?
(ii) if so, was the High Court right to uphold this ground of exception
in relation to the Zimbabwean plaintiffs?
(f) In regard to the legal duty exception (if it is reached):
(i) did the Supreme Court of Appeal err in holding that the
High Court’s dismissal of this ground was not appealable?
(ii) if so, should the High Court have upheld this ground of exception?
(g) Remedy and costs.


63 Lisse v Minister of Health and Social Services [2014] NASC 24; 2015 (2) NR 381 (SC) (Lisse).
ROGERS J
26
Jurisdiction and leave to appeal
[61] In regard to condonation and prescription, whether this Court’s judgment in
Law Society was necessary to complete the plaintiffs’ causes of action is a constitutional
matter as contemplated in section 167(3)(b)(i) of the Constitution,64 because it concerns
the ingredients of a delictual claim based on conduct of the President which is alleged
to have violated the Constitution. It is also an arguable point of law of general public
importance as contemplated in section 167(3)(b)(ii).65

[62] Whether an application for constitutional relief of the kind sought in Law Society
can interrupt prescription in respect of a delictual debt subsequently pursued by way of
action is an arguable point of law of general public importance which ought to be
considered by this Court. It involves a consideration of the approach adopted in Allianz
and the proper scope of that approach . More generally, questions of prescription are
constitutional matters because they impact on the right of access to courts guaranteed
by section 34 of the Constitution.66

[63] If the exception s are reached, the legal duty exception has a constitutional
dimension. The question whether conduct in a novel setting should be treated as
wrongful for delictual purposes involves legal and public policy, the content of which
is informed by the Constitution.67 This is particularly so here, where the conduct is that
of the President and where alleged violations of the Constitution form part of the case

64 Section 167(3)(b)(i) provides that the Constitutional Court “may decide . . . constitutional matters” .
65 Section 167(3)(b)(ii) provides that the Constitutional Court “may decide . . . any other matter, if the
Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general
public importance which ought to be considered by that Court”. On the test for jurisdiction under this provision,
see Paulsen v Slip Knot Investments 777 (Pty) Limited [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR
509 (CC) at paras 16-28. See also, for example, Shiva Uranium (Pty) Limited (In Business Rescue) v Tayob [2021]
ZACC 40; 2022 (2) BCLR 197 (CC); 2022 (3) SA 432 (CC) at para 27 and Big G Restaurants (Pty) Limited v
Commissioner for the South African Revenue Service [2020] ZACC 16; 2020 (6) SA 1 (CC); 2020 (11) BCLR
1297 (CC) at paras 11-5.
66 Mtokonya above n 56 at para 9; Loni v Member of the Executive Council, Department of Health, Eastern Cape
Bhisho [2018] ZACC 2; 2018 (3) SA 335 (CC); 2018 (6) BCLR 659 (CC) at para 20.
67 Loureiro v Imvula Quality Protection (Pty) Ltd [2014] ZACC 4; 2014 (3) SA 394 (CC); 2014 (5) BCLR 511
(CC) at para 34; BE obo JE v MEC for Social Development, Western Cape [2021] ZACC 23; 2021 (10) BCLR
1087 (CC); 2022 (1) SA 1 (CC) at para 7.
ROGERS J
27
for delictual wrongfulness. Similar questions of policy arise in relation to legal
causation, if it is covered by the defendants’ exception.

[64] On leave to appeal, prospects of success are an important consideration. Such
prospects exist here. Since a trial is likely to impose significant burdens in time and
costs on the litigants, it is desirable to dispose of these questions upfront if this can
properly be done. It is thus in the interests of justice to grant leave to appeal.

Condonation / prescription
[65] The issues that arise in respect of condonation / prescription must be determined
on the assumption that the plaintiffs’ pleaded case discloses a cause of action for
recovery of the damages claimed, even though this is hotly contested by the exception.

Relevant statutory provisions
[66] It is not in dispute that the Institution Act applies to the plaintiffs’ claims. “Debt”
is defined in that Act as a debt arising from, among others, a delictual cause of action
for which an “organ of state” is liable for payment of damages. “Organ of state” is
defined as including “any functionary or institution exercising a power or performing a
function in terms of the Constitution”.

[67] It is also not in dispute that, by virtue of section 2(2) of the Institution Act, the
Prescription Act determines the period of prescription applicable to the debts which the
plaintiffs are claiming. In terms of section 11(d) of the Prescription Act, t hat period is
three years.

[68] Section 3 of the Institution Act provides in relevant part:

“(1) No legal proceedings for the recovery of a debt may be instituted against an
organ of state unless—
ROGERS J
28
(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—
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of
the creditor.
(3) For purposes of subsection (2)(a)—
(a) a debt may not 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 acquir ed it by
exercising reasonable care, unless the organ of state wilfully prevented
him or her or it from acquiring such knowledge; and
. . .
(4)
(a) If an organ of state relies on a creditor’s failure to serve a notice in
terms of subsection (2)(a), the cre ditor 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.”

[69] In terms of section 5(2) of the Institution Act , legal proceedings governed by
the Act may not be served before the expiry of 60 days after the noti ce was served on
the organ of state unless, prior to the expiry of the 60 days, the organ of state in writing
repudiates liability.

ROGERS J
29
[70] Section 12(1) of the Prescription Act provides that, subject to subsections (2),
(3) and (4), prescription shall commence to run “as soon as the debt is due”.
Section 12(2) states that , if the debtor wilfully prevents the creditor from coming to
know of the existence of the debt, prescription shall not start to run until the creditor
becomes aware of the existence of the debt. Section 12(3) provides that a debt shall not
be deemed to be due “until the creditor has knowledge of the identity of the debtor and
of the facts from which the debt arises ”, subject to the proviso that a creditor “shall be
deemed to have such knowledge if he could have acquired it by exercising reasonable
care”. Subsections 12(2) and (3) of the Prescription Act thus substantially mirror
section 3(3)(a) of the Institution Act.

[71] Section 15 of the Prescription Act deals with the judicial interruption of
prescription. It reads in relevant part:

“(1) The running of prescription shall, subject to the provisions of subsection (2),
be interrupted by the service on the debtor of any process whereby the creditor
claims payment of the debt.
(2) Unless the debtor acknowledges liability, the interruption of prescription in
terms of subsection (1) shall lapse, and the running of prescription shall not be
deemed to have been interrupted, if the creditor does not successfully prosecute
his claim under the process in question to final judgment or if he does so
prosecute his claim but abandons the judgment or the judgment is set aside.
. . .
(4) If the running of prescription is interrupted as contemplated in subsection (1)
and the creditor successfully prosecutes his claim under the process in question
to final judgment and the interruption does not lapse in terms of subsection (2),
prescription shall commence to run afresh on the day on which the judgment
of the court becomes executable.
. . .
(6) For the purposes of this section, ‘process’ includes a petition, a notice of
motion, a rule nisi, a pleading in reconvention, a third party notice referred to
in any rule of c ourt, and any document whereby legal proceedings are
commenced.”

ROGERS J
30
Is there anything against which the defendants could appeal?
[72] Although the High Court granted the defendants leave to appeal in respect of
condonation / prescription, the Supreme Court of Appeal considered that there was no
appealable order. The plaintiffs’ condonation application was conditional on a finding
that they needed condonation. The High Court found that they did not need condonation
because time only started to run when this Court delivered its judgment in Law Society.
Absent an order granting the condonation application, there was, in the Supreme Court
of Appeal’s view, nothing against which the defendants could appeal.

[73] The Supreme Court of Appeal’s approach was to o formalistic. It is true that a
litigant who has no quibble with the actual order made by a court may not appeal merely
because they dispute the court’s reasoning. 68 The present case is quite different. The
applicants brought a condonation application, in which they sought condonation “to the
extent that this might be nec essary”. In substance, their notice of motion sought relief
in the alternative from the High Court: a decision that they did not need condonation,
alternatively the granting of condonation. The defendants opposed the condonation
application, contending that condonation was indeed necessary and that it could not be
granted because the debts which the plaintiffs want ed to pursue had prescribed. The ir
opposing affidavit concluded with a prayer that the condonation application be
dismissed with costs, including the costs of two counsel.

[74] In terms of section 16(1) of the Superior Courts Act,69 a litigant may seek leave
to appeal a “decision” of the High Court. T o hold that the High Court did not make a
“decision” on the condonation application is to place form over substance. The
defendants are not dissatisfied merely with the High Court’s reasoning. They contend
that the High Court should have found in their favour by dismissing the condonation
application with costs. The matter can be teste d by asking whether the defendants are

68 International Trade Administration Commission v SCAW Sou th Africa (Pty) Ltd [2010] ZACC 6; 2010 (5)
BCLR 457 (CC) ; 2012 (4) SA 618 (CC) at para 71 and Western Johannesburg Rent Board v Ursula Mansions
(Pty) Ltd 1948 (3) SA 353 (A) at 355.
69 10 of 2013.
ROGERS J
31
seeking some alteration to the orders granted by the High Court. The answer is yes. An
alteration can include the addition of orders which the court of first instance should have
made but failed to make.

[75] By making no formal order on the condonation application, the High Court in
substance made a decision in favour of the plaintiffs on their primary contention,
namely that they did not need condonation , and a decision adverse to the defendants ,
namely by rejecting their prayer for the dismissal of the condonation application.

[76] Moreover, in their condonation application the plaintiffs sought costs against the
defendants on the attorney and client sca le, even if the Court were to find that
condonation was unnecessary. Conversely, the defendants in opposing the application
sought costs against the plaintiffs. The High Court ’s discussion on the merits of the
condonation application concluded with a statement, based on the preceding reasoning,
that “no order is required to be made in the application for condonation save for the
costs thereof”.

[77] On the question of costs, the High Court stated that the plaintiffs had been the
“successful parties in the condonation application” whereas the defendants had
successfully pursued two of the five exceptions. The High Court did not agree with the
plaintiffs’ castigation of the defendants’ conduct . Having regard to the respective
successes of the parties, the High Court considered it just for each party to be
responsible for their own costs. This was reflected in paragraph 5 of the order, which
stated: “No order is made as to the costs of the condonation application and the
exception.”

[78] The High Court thus took its decision on the condonation application into
account in determining the overall costs order. If the High Court had found in favour
of the defendants rather than the plaintiffs on the condonation application, paragraph 5
of its order would have had to be revisited.

ROGERS J
32
[79] The defendants cite Public Protector 70 in support of the propositio n that the
absence of an order does not render an appeal impermissible. That case is not altogether
in point. There, the High Court in substance dismissed amaBhungane’s claim for
substantive relief on preliminary grounds ,71 even though – perhaps through
oversight – it omitted to include a dismissal order in the relief granted at the end of the
judgment.72 On appeal, this Court held that the High Court should have considered
amaBhungane’s claim on its merits. AmaBhungane’s application was remitted to the
High Court for that purpose.73

[80] In the present case, the persons complaining about the High Court’s treatment of
the application are not those who sought substantive relief by way of the condonation
application. Moreover, the High Court in the present case did not intend to dismiss the
plaintiffs’ condonation application and merely fail to record this in the order . The
High Court expressly concluded that no order on the condonation application was
needed.

[81] Nevertheless, for the reasons I have given, the High Court made an appealable
“decision” on the condonation application. The appeal on that decision was properly
before the Supreme Court of Appeal . Although the agreed terms on which the
High Court granted leave to appeal were not binding on the Supreme Court of Appeal,
the parties and the High Court sensibly and correctly recognised the substance of the
matter.

Should prescription have been deferred to a special plea?
[82] If a creditor requires condonation in terms of section 3(4)(a) of the Institution Act
and the debtor raises prescription as an objection in terms of section 3(4)(b)(i), the court

70 Public Protector above n 60.
71 President of the Republic of South Africa v Public Protector [2020] ZAGPPHC 9; [2020] 2 All SA 865 (GP);
2020 (5) BCLR 513 (GP) at para 195.
72 Id at para 214. The order did, however, provide that there would be no order as to costs in respect of
amaBhungane: see para 5 of the order at para 214 (AmaBhungane was the sixth respondent referred to in para 5).
73 Public Protector above n 60 at paras 6, 141-5 and 149.
ROGERS J
33
must determine prescription as part of the condonation application.74 Condonation is a
threshold issue, and section 3(4)(b)(i) makes prescription part of the determination of
that threshold issue.

[83] This causes no procedural prejudice to a creditor. If a debtor raises prescription
in its answering affidavit, the creditor can, in its replying affidavit, advance any grounds
of replication that may be available to it to neutralise prescription. If there are factual
disputes, they can be referred to oral evidence. The fact that prescription can also be
raised in a special plea is no reaso n not to deal with it as part of the creditor’s
condonation application.

When did the debts become due?
[84] If, subject to the requisite actual or constructive knowledge by the plaintiffs, the
delictual debts in this case became “due” by 18 August 2014 (as c ontemplated in
section 3(2)(a) of the Institution Act), and if the plaintiffs had the requisite knowledge
by not later than 21 July 2015 (as contemplated in section 3(3)(a) of the Institution Act),
they needed condonation in terms of section 3(4)(a) of the Institution Act, because their
notices in terms of section 3(2) were only served in December 2018 and January 2019,
more than six months after the debts became due . And if, by the time the condonation
application was served in April 2019, the debt s had prescribed, section 3(4)(b)(i) was
an absolute bar to condonation.

[85] Subject to the requisite actual or constructive knowledge by the creditor, a
delictual debt becomes “due” , within the meaning of section 12(3) of the
Prescription Act and section 3(2 )(a) of the Institution Act, once the debtor’s wrongful
and deliberate or negligent conduct has caused the creditor to suffer damage. That is
when the creditor is entitled in law to institute action for the recovery of damages.


74 Links above n 61 at para 12.
ROGERS J
34
[86] In terms of section 12(3) of the Prescription Act and section 3(3)(a) of the
Institution Act, this is subject to the qualification that time does not start to run (that is,
the debt is not deemed to be “due”) until the creditor has actual or constructive
knowledge of the identity of the debtor and the “facts from which the debt arises”. The
“facts” do not include that the debtor’s conduct was wrongful or negligent or that the
creditor has a right to sue the d ebtor, nor does it include legal conclusions that may be
drawn from the facts. 75 This Court has cited with approval the proposition that time
starts to run against a creditor when it has “the minimum fact s that are necessary to
institute action” and that the running of prescription is not postponed until the creditor
“becomes aware of the full extent of its legal rights”.76

[87] The plaintiffs do not contest these general principles. The point of contention
has to do with the fact that the delictual conduct in question is conduct of the President
which is alleged to have been in violation of the Constitution. In that regard,
subsections 167(4)(e) and (5) of the Constitution provide:

“(4) Only the Constitutional Court may—
…
(e) decide that Parliament or the Pr esident has failed to fulfil a
constitutional obligation; or
…
(5) The Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President is constitutional, and
must confirm any order of invalidity made by the Supreme Court of Appeal,
the High Court of South Africa, or a court of similar status, before that order
has any force.”

And section 172(2)(a) relatedly states:


75 Mtokonya above n 56 at paras 36-51.
76 Minister of Finance v Gore N.O. [2006] ZASCA 98; 2007 (1) SA 111 (SCA); [2007] 1 All SA 309 (SCA) at
para 17, quoted in Mtokonya id at para 48 and in Food and Allied Workers Union obo Gaoshubelwe v Pieman’s
Pantry (Pty) Limited [2018] ZACC 7; 2018 (5) BCLR 527 (CC); [2018] 6 BLLR 531 (CC ); (2018) 39 ILJ 1213
(CC) (Pieman’s Pantry) at para 208.
ROGERS J
35
“The Supreme Court of Appeal, the High Court of South Africa or a court of similar
status may make an order concerning the constitutional validity of an Act of Parliament,
a provincial Act or any conduct of the President, but an order of constitutional invalidity
has no force unless it is confirmed by the Constitutional Court.”

[88] The nub of the plaintiffs’ argument is that, by virtue of the above provisions,
they could not pursue a delictual claim, based on the alleged unconstitutionality of the
President’s conduct, until this Court made or confirmed a declaration that the
President’s conduct was unconstitutional.

[89] The first premise of the plaintiffs’ argument is that a finding of delictual
wrongfulness based on an alleged violation by the President of the Constitution requires
a finding of constitutional invalidity within the meaning of thes e provisions of the
Constitution. The plaintiffs accept that a violation of the Constitution does not without
more give rise to delictual liability , but their pleaded case requires a finding of
unconstitutional conduct as a component of delictual wrongfulness. I shall assume,
without deciding, the correctness of this premise.

[90] The second premise is that, because a finding of constitutional invalidity has to
be made or confirmed by this Court, the plaintiffs’ causes of action were not completed
until such an order was made by this Court. In other words, the second premise is that
until this Court made its order the President’s conduct had to be treated by a trial court
as constitutional.

[91] The second premise, in my view, confuses what has to be decided with who has
to decide it and when it has to be decided. If the President acted unconstitutionally in
May 2011 and August 2014 in the manner alleged by the plaintiffs, his conduct was,
objectively speaking, already unconstitutional then. If a court of competent jurisdiction
later concludes that the President acted unconstitutionally, its conclusion is that he acted
unconstitutionally when he performed the acts in question. The acts do not become
ROGERS J
36
unconstitutional only from the time the court make s such a conclusion. This is in
accordance with the doctrine of objective constitutional invalidity.77

[92] Having regard to the plaintiffs’ pleaded case, a component of the wrongfulness
alleged by them was that the President violated the Constitution by his conduct in 2011
and 2014. If the President indeed acted contrary to the Constitution at those times, that
component of pleaded wrongfulness came into existence in 2011 and 2014. What the
plaintiffs had to allege and prove was that the President acted unconstitutionally at those
times. They did not need to allege and prove that another court had already found that
the President so acted.

[93] What then is the implication of the sections of the Constitution on which the
plaintiffs rely? Their written submissions focused on sections 167(5) and 172(2)(a) .
Although there was a passing reference to section 16 7(4)(e), the written submissions
did not address this Court’s jurisprudence on the scope of sections 167(4)(e) and 167(5)
respectively. In oral argument, the plaintiffs’ counsel highlighted section 165(4)(e), but
there was still no engagement with the relevant jurisprudence. Unsurprisingly, the point
was not anticipated or dealt with by the defendants’ counsel.

[94] Section 167(4) confers exclusive jurisdiction on this Court in relation to the
matters listed in that subsection. Matters of that kind cannot competently be brought in
the High Court. Sections 167(5) and 172(2)(a), on the other hand, are complementary
provisions dealing with cases in which the High Court can make declarations of

77 Ferreira v Levin N.O.; Vryenhoek v Powell N .O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1
(CC) (Ferreira); Ex parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Lo cal Council
[2001] ZACC 2; 2001 (4) SA 1288 (CC) ; 2001 (8) BCLR 765 (CC) at para 11. In Ferreira the matter was put
thus at para 27:
“The Court’s order does not invalidate the law; it merely declares it to be invalid. It is very
seldom patent, and in mos t cases is disputed, that pre -constitutional laws are inconsistent with
the provisions of the Constitution. It is one of this Court’s functions to determine and pronounce
on the invalidity of laws, including Acts of Parliament. This does not detract from the reality
that pre -existing laws either remained valid or became invalid upon the provisions of the
Constitution coming into operation. In this sense laws are objectively valid or invalid depending
on whether they are or are not inconsistent with the C onstitution. The fact that a dispute
concerning inconsistency may only be decided years afterwards, does not affect the objective
nature of the invalidity.”
ROGERS J
37
constitutional invalidity but where its declarations have no force or effect until
confirmed by this Court.

[95] This Court’s ju risprudence on the distinction between its exclusive and
confirmatory jurisdiction has been guarded. The Court has preferred to deal with the
issue on a case by case basis, rather than laying down precise rules. Two general trends
can, however, be discerned:
(a) First, the grounds of exclusive jurisdiction in section 167(4)(e) should be
narrowly construed so as not to render nugatory this Court’s confirmatory
jurisdiction and the related jurisdiction of other superior courts to make
orders about the constitutional validity of the matters referred to in
section 172(2)(a).78
(b) Second, exclusive jurisdiction is usually confined to those cases where
the Constitution expressly imposes an obligation on Parliament or the
President specifically and where the complaint is that Parliament or the
President has not complied with that obligation.79

[96] As I shall explain presently, the alleged unconstitutional conduct of the President
in th is case falls within the scope of this Court’s confirmato ry jurisdiction, not its
exclusive jurisdiction. But I do not think it ultimately matters for purposes of the
prescription argument. The distinction affects only the procedure that a creditor in the
plaintiffs’ position has to follow. On either basis, t here would be a complete cause of
action without there having been an order by this Court , and procedural mechanisms
exist to enable proceedings to be served so as to interrupt prescription.

78 President of the Republic of South Africa v South African Rugby Football Union [1998] ZACC 21; 1999 (2) SA
14 (CC); 1999 (2) BCLR 175 (CC) at para 25; Von Abo v President of the Republic of South Africa [2009] ZACC
15; 2009 (5) SA 345 (CC); 2009 (10) BCLR 1052 (CC) (Von Abo) at paras 31-3.
79 See, eg, Von Abo id at para 35, referencing Doctors for Life International v Speaker of the National Assembly
[2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) at paras 25 -6; Daniel v President of the
Republic of South Africa [2013] ZACC 24; 2013 (11) BCLR 1241 (CC) at para 12. See also the minority judgment
in Mazibuko v Sisulu [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) at para 125 (the
majority did not find it necessary to decide the question of exclusive jurisdiction). Examples established by our
case law include Parliament’ s failure to comply with its express constitutional obligation to facilitate public
participation in the enactment of legislation and its failure to enact national legislation which the Constitution
specifically requires it to enact.
ROGERS J
38

[97] If the case were governed by our confirmatory jurisdiction, a creditor in the
plaintiffs’ position could issue summons in the High Court , asking the High Court to
find, among other things, that the President acted unconstitutionally. If the High Court
imposed delictual liability on this basis, one component of its finding would – on the
plaintiffs’ first premise, the correctness of which I have assumed – require confirmation
by this Court. The issuing of summons would not , however, be premature. The need
for confirmation on one aspect would not detract from the completeness of the cause of
action when summons was issued.

[98] If the case were governed by our exclusive jurisdiction, there would be two
options open to a creditor in the plaintiffs’ position. The creditor could simultaneously
issue summons in the High Court and an application in this Court. The summons would
refer to the parallel application in this Court and perhaps seek a stay of the summons
pending this Court’s decision. Alternatively, the creditor could start by just issuing an
application in this Court, as a first step in proceedings for the recovery of delictual
damages, in line with Allianz,80 followed afterwards by a High Court summons as the
second step in those proceedings. The fact that part of the case was within the exclusive
jurisdiction of this Court would not mean that there was not a complete delictual cause
of action from the outset. It would mean only that one component of the cause of action
has to be decided by this Court while the other components of the cause of action must
be decided by the High Court.

[99] In the present case, the matter falls within this Court’s confirmatory jurisdiction,
not its exclusive jurisdiction. The LSSA launched its application in the High Court.
The intervening applicants intervened in the High Court proceedings. The case was
thus dealt with by the litigants as not being in this Court’s exclusive jurisdiction. The
matter then came to this Court for confirmation in terms of section 172(2)(a). Although
there is no indication that the basis of jurisdiction was debated, this Court regarded the

80 Allianz above n 58.
ROGERS J
39
case as properly before it for confirmation, stating that the High Court’s declarations of
constitutional invalidity were “on all fours with the provisions of section 167(5) of the
Constitution”.81

[100] This view accords with the trends of this Court’s jurisprudence. The plaintiffs
allege that the President’s conduct violated the SADC Treaty and the rule of law. The
fact that the SADC Treaty creates a policy -making body comprising H eads of States
and Governments does not mean that the duties imposed by the Treaty on Summit
members are duties imposed by our Constitution on the President. Furthermore, the
Treaty allows Heads of States and Governments to make decisions; it does not imp ose
specific obligations.

[101] Section 231 of the Constitution states that negotiating and signing international
agreements is the responsibility of the “national executive” and that such agreements
bind “the Republic” after they have been approved by Parliame nt. No obligations in
that regard are imposed specifically on the President. Exclusive jurisdiction is likewise
not engaged w here the President is said to have exercised some or other power in a
manner which conflicts with constitutional principles, such as the rule of law, binding
on all persons vested with public power.

[102] For these reasons, and subject to actual or constructive knowledge, the debts
which are the subject of the action fell “due” within the meaning of the relevant statutory
provisions by not later than 18 August 2014.

Actual or constructive knowledge
[103] In their founding affidavit, the plaintiffs anticipated prescription as a component
of the requirements for condonation in terms of section 3(4). Since their summons was
issued and served in April 2019, they needed to establish that prescription did not start
running before April 2016. They did so by asserting that the LSSA’s application was

81 Law Society above n 29 at para 19.
ROGERS J
40
instituted on 19 March 2015 and that this Court delivered its judgment on
11 December 2018. They c ontended that prescription was either stayed for the full
duration of the LSSA application or did not start running until this Court delivered
judgment. They did not assert that they only acquired knowledge of the relevant facts
after April 2016.

[104] In the answering affidavit, the defendants submitted that the debts, as pleaded,
fell due on 18 August 2014 and that it appeared from Mr Tembani’s affidavit in the
intervention application that the plaintiffs became aware of the relevant facts in
August 2014 and in any event by not later than 21 July 2015. Mr Tembani’s affidavit
in support of intervention was attached to the defendants’ answering affidavit. The
defendants highlighted and addressed the two limited grounds on which the plaintiffs
relied to avoid prescription.

[105] In their replying affidavit, the plaintiffs did not respond to the allegation that they
had the requisite knowledge by not later than 21 July 2015. Instead, they persisted with
the two grounds raised in their founding affidavit. It may be accepted that the
defendants bore the onus of establishing that the debts had prescribed.82 However,
given the issues identified in the affidavits, the defendants established that the plaintiffs
had the requisite knowledge by July 2015.

Conclusion thus far on prescription
[106] It follows that, subject to the plaintiffs’ alternative contention of interruption, the
debts were prescribed and the High Court should thus have dismissed the application
for condonation.


82 This is the usual position. The defendants did not argue that section 3(4)(b)(i) of the Institution Act reversed
the usual onus.
ROGERS J
41
Interruption of prescription
[107] Although a de btor bears the onus of proving when a debt fell due and when
prescription started to run, the creditor bears the burden of proving a subsequent act of
interruption.83

[108] In their affidavits in the condonation application, the plaintiffs did not assert that
the delivery of the intervention application was an act of interruption. Their contention
was that the running of prescription was “stayed” from 19 March 2015 (when the LSSA
instituted its application) until 11 December 2018 (when this Court delivered
judgment), alternatively that prescription did not start to run until 11 December 2018.
Even from the written argument, it is unclear whether the plaintiffs rely on the service
of the intervention application as an act of interruption. However, since that p oint was
anticipated by the defendants, I shall address it.

[109] As to the “staying” of prescription, the plaintiffs did not contend that the
Law Society application had the effect of delaying the completion of prescription on any
of the grounds set out in section 13(1) of the Prescription Act. Since I have rejected the
plaintiffs’ contention that prescription did not start to run until this Court delivered its
judgment in Law Society , the only remaining issue is whether prescription was
interrupted when the LSSA served its application in March 2015 or when some of the
plaintiffs served their intervention application in July 2015.

[110] The service of the LSSA’s application in March 2015 could not, by any stretch,
be treated as an act of interruption in favour of the plaintiffs. Section 15(1) requires the
process to be one by which the “creditor” claims payment of the debt in question. The
plaintiffs were not parties to the institution of the LSSA’s application in March 2015.
And the LSSA was not a creditor in respect of delictual damages.


83 Anglorand Securities Ltd v Mudau [2011] ZASCA 76 at para 16; Cameron-Down v En Commandite Partnership
PJ Laubscher And MC Cameron -Dow [2015] ZAWCHC 48; [2015] 9 BLLR 958 ( WCC); (2015) 36 ILJ 3086
(WCC) at para 122.
ROGERS J
42
[111] As to the intervention application, the intervening applicants’ notice of motion
does not form part of the recor d in the present case . This is perhaps because the
plaintiffs did not contend that service of the intervention application was an act of
interruption. From the intervening applicants’ founding affidavit in the intervention
application, one can infer that they intervened in order to support the relief claimed by
the LSSA. The LSSA’s notice of motion is also not part of the record in the present
case, but according to the judgments given in Law Society, the LSSA claimed an order
that the President’s participation in suspending the Tribunal and his subsequent signing
of the 2014 Protocol be declared unconstitutional.

[112] Only five of the plaintiffs were among the intervening applicants. 84 Even if the
service of the intervention application was a process by which the intervening applicants
claimed payment of the debts which they individually claimed in the subsequent action,
such service would only have interrupted prescription in respect of those five plaintiffs.
The intervention application c ould not be viewed as a process by which any of the
non-intervening plaintiffs claimed payment of the debts which they individually
claimed in the subsequent action.

[113] In respect of the five intervening plaintiffs, the intervention application was not,
in my view, a process by which they claimed payment of the debts which are the subject
of the pending action. The plaintiffs invoke Allianz.85 It was held in that case that a
process claiming only partial relief in respect of a debt could constitute an act of
interruption, even though a second separate process was needed in order to obtain an
executable judgment in respect of the debt. Allianz is, however, distinguishable.

[114] In Allianz the creditors were the insured parties in t erms of insurance policies
issued by the debtor, an insurer. In the first legal process, the creditors sought an order
declaring that the debtor was liable to indemnify them under the policies. This

84 One of those plaintiffs, Mr Tembani, died after the institution of the action. His executor was not substituted
in the proceedings before us.
85 Allianz above n 58.
ROGERS J
43
declaratory order would not have given rise to an executable judgment, since it did not
require the debtor to do anything. It would, however, settle the question of the insurer’s
liability and pave the way for a second legal process quantifying the indemnities and
claiming a monetary amount. The Court held that in these particular circumstances the
obtaining of an executable judgment in the second process would, for purposes of
section 15(2), amount to the successful prosecution of the claim commenced by way of
the first process.

[115] The correctness of Allianz was not questioned in argument before us and it was
endorsed by this Court in Pieman’s Pantry.86 However, Allianz is not authority for the
unqualified proposition that a first process which disposes of an issue which is also an
issue in a second process interrupts prescription in respect of the debt which is the
subject of the second process. In order to interrupt prescription in terms of Allianz, the
first process must, in terms of section 15(1), be a process capable of being classified as
one “whereby the creditor claims payment of the debt”. In other words, the process
must be identifiable as the first step in the recovery of the debt which forms the subject
of the second process.

[116] This requirement was met in Allianz. The Court stated that “right” an d “debt”
are “opposite poles of one and the same obligation ”.87 When the insured parties
launched the first process, they were asserting their “right” to be indemnified under the
policies. Although the “debt” (the monetary amount which the insurer was obl iged to
pay them) was not yet claim ed, the first process was unmistakably a step in claiming
that debt and the cause of action in the two processes would be the same.88


86 Pieman’s Pantry above n 76 at para 202. What Allianz does not address is when prescription starts to run again
after the service of the first process. In terms of section 15(4), prescription only starts to run afresh when a
judgment under the relevant process becomes executable. Since a declaratory order of the kind obtained in Allianz
pursuant to the first process is not an executable judgment, prescription would not on the face of it start to run
afresh when judgment is given on the first process. However, if prescription does not start to run afresh at that
point, the creditor would not be subject to any time limit in instituting the second process.
87 Allianz above n 58 at 331C.
88 Id at 332J-333D.
ROGERS J
44
[117] The same is true of Pieman’s Pantry. The referral of the unfair dismissal claim
to conciliation was a first and necessary step in obtaining final relief in respect of unfair
dismissal, even though such relief required a further process. The unfair dismissal claim
referred to conciliation was indisputably the same unfair dismissal claim that was the
subject of the subsequent litigation.

[118] In the present matter, the intervention application does not meet the standard of
a process by which the plaintiffs in question were claiming payment of the debt s they
sought to enforce in the subsequent action . The founding affidavit in support of
intervention made no reference to delictual liability. The other papers in the
intervention application are not part of the record in the present case. If there was
anything in them to support the notion that they were a first step in enforcing delictual
liability, it was for the plaintiffs – on whom the onus of proving interruption rested – to
put them up as part of their papers in the condonation application.

[119] In the condonation application, the intervening applicants did not state that the
intervention application was seen by them as a first step in claiming payment of any
delictual debts. For all we know, the idea of instituting delictual claims only occurred
to the plaintiffs and their legal advisers mu ch later. On their own terms, the LSSA’s
application and the plaintiffs’ intervention advanced only a public law cause of action
in support of public law relief. There was nothing in that application to suggest to t he
President that he was the subject of any delictual claim and that the intervening
applicants were intervening in order to obtain relief that would serve as a first step in
pursuing delictual claims . Such a purpose, if disclosed, might have affected the
High Court’s decision to allow the intervening applicants to intervene.

[120] It follows that in Lisse89 the Namibian Supreme Court stretched the Allianz
principle beyond its proper limits. In the Namibian case, Dr Lisse brought an
application to review the Minister of Health’s decision to refuse him permission to

89 Lisse above n 63.
ROGERS J
45
practise privately at state hospitals. The review succeeded in the High Court . The
Supreme Court dismissed the Minister’s appeal in November 20 05. As a result, a
certificate allowing Dr Lisse to practi se was issued in January 2006. In
November 2008, he issued summons against the Minister, claiming delictual damages
for the loss he had suffered due to his inability to practi se at state hospitals over the
period April 2004 to December 2005.

[121] The High Court upheld the Minister’s special plea of prescription,90 but this was
reversed by the Supreme Court. The first question, according to the Supreme Court,
was whether the basis of the claim in the review proceedings was substantially the same
as the basis of the claim in the delictual action. The Supreme Court answered this
question in the affirmative, stating that in both proceedings relief was claimed on the
basis of a breach of the constitutional right to administrative justice.

[122] The second question , the Supreme Court said, was whether the review
proceedings constituted a step in the enforcement of the claim for payment of the debt .
The Supreme Court noted that Dr Lisse’s first priority in the review was to set aside the
refusal of permission to practise and obtain an order requiring the Minister to issue the
necessary authorisation to him. Until that occurred, he was not able to practise at all in
state hospitals. The review proceedings “thus constituted a crucial step in the process
of enforcing his constitutional rights”. The third question was whether the review
disposed of any elements of the claim in the delictual action. The unlawfulness of the
Minister’s decision was such an element, the Court found, even though on its own it did
not establish delictual wrongfulness.

[123] In my view, the first two questions posed by the Namibian Supreme Court were
answered incorrectly. If by “basis of the claim” the Court meant the cause of action or
right of action, the cause or right of action in the review was not substantially the same
as the cause or right of action in the action. The fact that there is some overlap in the

90 Lisse v Ministry of Health and Social Services [2011] NAHC 248.
ROGERS J
46
elements of causes or rights of action does not mean that they are substantially the same.
For example, a cause of action for damages for wrongful arrest and detention is distinct
from a cause of action for malicious prosecution, even though they arise from the same
set of facts.91 A claim for damages for personal injury caused in a motor accident and
a claim for damages for loss of support due to the death of a breadwinner in the same
motor accident are distinct causes of action, even though there is a measure of overlap,
with the result that a summons claiming damages of the former kind does not interrupt
prescription in respect of damages of the latter kind.92

[124] The differences between a public law claim in review proceedings and a private
law claim for delictual damages are substantially greater than in the above examples.
A violation of the Constitution is of the essence where an applicant claims constitutional
relief for an alleged violation of the Constitution by the President. In a delictual claim
against the President, the plaintiff must establish that the President acted wrongfully in
the delictual sense. A breach of the Constitution may or may not be an element of
establishing wrongfulness; it is not an element of the cause of action as such . Fault,
causation and damage are not elements of a public law cause of action.

[125] I also disagree with the Namibian Supreme Court’s answer to the second
question which it posed. While the review judgment may have been useful to Dr Lisse
in his delictual claim, the reported judgment does not suggest that there was anything
in the review which identified it as a first step in recovering a delictual debt. On the
contrary, the Court’s judgment suggests that the review was directed only at enabling
Dr Lisse to practise at state ho spitals. As in the present case, the delictual claim may
have been conceived only after the review was finalised.

[126] There is one final consideration relevant to the question of interruption. The case
for interruption has to proceed on the basis that the LSSA application and the

91 Olesitse N.O. v Minister of Police [2023] ZACC 35; 2024 (2) BCLR 238 (CC) at para 64.
92 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838C-842H.
ROGERS J
47
intervention in that application were the first stage of legal proceedings for the recovery
of the delictual debts. If that was the character of the intervention, it would need to have
been preceded by a notice in terms of section 3 of the Institution Act. The fact that no
such notice was given at that time is consistent with the view that intervention in the
LSSA’s application was never understood by the relevant plaintiffs as the first step in
the recovery of delictual damages.

Conclusion
[127] It follows that the High Court should have dismissed the condonation application
on the basis that the debts in question were prescribed. This being so, it is unnecessary
to consider the exception. The exception presumes that an action was per missibly
instituted.

[128] Although t he plaintiff s’ action is delictual, there is a sufficient constitutional
component in my view to justify granting them protection from costs in terms of
Biowatch.93 The proceedings were not frivolous or otherwise manifestly inappropriate.
One cannot but feel sympathy for the treatment to which they were allegedly subjected
in Zimbabwe.

Order
[129] The following order is made:
1. Leave to appeal is granted.
2. The appeal succeeds.
3. The orders of the High Court and Supreme Court of Appeal are set aside.
4. The High Court’s order is replaced with the following order:
“(a) The plaintiffs’ application for condonation is dismissed.
(b) Consequently, the plaintiffs’ action is dismissed.”

93 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
ROGERS J
2
5. The parties shall bear their own costs in the High Court, the Supreme
Court of Appeal and this Court.



For the Applicants: G Marcus SC, A Coutsoudis and H Rajah
Instructed by the State Attorney, Pretoria

For the Respondents: J J Gauntlett SC , F B Pelser and
K Thabakgale
Instructed by Hurter Spies Incorporated