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[2024] ZAECMKHC 136
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Z.F obo Y.A.F v Enoch Mgijima Local Municipality (3615/2023; 3616/2023) [2024] ZAECMKHC 136 (22 August 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MAKHANDA)
Reportable/
Not
Reportable
Case no.: 3615/2023
Matter heard on: 15
August 2024
Judgment delivered on:
22 August 2024
In
the matter between:
Z[...]
F[.. ]
obo
Y[…] A[...]F[…]
Applicant
and
ENOCH
MGIJIMA LOCAL MUNICIPALITY
Respondent
AND
CASE
NO: 3616/2023
MXOLISI
QUINTON MASAYIMANI
Applicant
and
ENOCH
MGIJIMA LOCAL MUNICIPALITY
Respondent
JUDGMENT
BRODY
AJ
1.
These are two matters by applicants against the Enoch Mgijima
Municipality (“the municipality”) in case no:
3615/2023
and case no: 3616/2023. As both matters involve the same defendant,
the same legal teams, and are applications to this
court for an order
in terms of section 3(4) of the Institution of Legal Proceedings
against certain Organs of State Act 40 of 2002,
relating to the
condonation for the applicants’ failure to serve a notice of
intention to bring legal proceedings against
the municipality, I will
give one judgment in respect of both matters. I will refer to the
first matter as Ms F[...]’s claim,
and the second matter as Mr
Masayimane’s claim.
2.
Ms F[...] brought action proceedings against the municipality in her
personal capacity and on behalf of her minor son,
Y[…]
A[...]F[...] (“the minor child”) arising out of the
electrocution of the minor child on the 17
th
of February
2020 at A[…] T, Squatter Camp, Komani (Queenstown). The minor
child accidentally came into contact with a live
electric cable when
he was playing with other children and was electrocuted, which
resulted in severe bodily injuries and disfigurement
to his left
hand. After an operation in Livingstone Hospital the minor child
underwent physical therapy and at the time of the
electrocution, the
minor child was 7½ years old.
3.
The incident was reported to a Ward Councillor of the municipality
and also to the South African Police Services in Komani.
4.
Ms F[...], at the time, did not know that she had a civil claim and a
right to sue anyone pursuant to her son’s electrocution.
She
also alleged in her application to this court, for condonation, that
despite not knowing that she had a potential claim, she
did not know
specifically what Organ of State a potential claim might lie. She
indicated that as a layperson, she laboured under
the mistaken
impression that the police would investigate the matter and take the
matter to court on her behalf and she did not
appreciate the
difference between a criminal case and a civil case. It was only on
the 24
th
of June 2023 that she learnt from members of the
community who reside in A[…] Squatter Camp, Komani, that there
was a possibility
of a claim against the municipality, and with the
assistance of an attorney in East London.
5.
The next day she consulted her attorney and he immediately opened a
file and did the necessary investigations.
6.
On the 6
th
of October 2023 a notice in terms of section 3
of the Institution of Legal Proceedings against certain Organs of
State Act 40 of
2002 (“the Act”) was served on the
municipality. Summons was issued and served on the 10
th
of
October 2023.
7.
The defendant then defended the matter and on 13 December 2023 the
municipality raised a special plea to the effect that
Ms F[...] had
not complied with section 3(2) of the Act in that she did not serve
the notice in terms of section 3 of the Act timeously.
8.
Ms F[...]’s personal claim is in the substantial sum of
R5 000 000.00 for
inter alia
“extreme trauma,
emotional shock, suffering, discomfort and loss of enjoyment of the
amenities of life”. The minor
child’s claim is in the
substantial sum of R15 000 000.00 which
inter alia
includes general damages, future hospital and medical expenses, and
future loss of earnings/loss of earning capacity.
9.
The municipality in its special plea raised prescription as a defence
and alleged that the debt became due on 20 February
2020 and the debt
prescribed on 20 February 2023. The special plea of prescription,
understandably, was in respect of Ms F[...]’s
personal claim as
the minor child had not yet reached the age of majority. The
defendant also raised a special plea in regard to
the failure to
timeously serve and file the section 3 notice, however, did not plead
why the failure to do so would be prejudicial
to the municipality.
10.
Ms F[...] then filed a replication in which she raised the issue that
she was not aware at any time before she met her
attorneys that she
had the right to sue for damages, and the identity of the
municipality.
11.
In the application for condonation the municipality alleged that
there was prejudice to it arising out of the fact that
employees of
the respondent who may have investigated the scene of the
electrocution may not have independent recollection of their
investigation and inspections, given the long delay in receiving
notice of the claim.
12.
According to the municipality memories of witnesses, who will be
required to give testimony, may have faded and become
unreliable. It
was the sole reason given by the municipality for prejudice.
13.
Ms F[...]’s reply to the allegations of prejudice are that the
municipality filed a detailed plea in the matter
and this included a
detailed opposition to the application for condonation. This, in her
view, indicated that the municipality
was able to investigate and
assess the claim. A further point made by her was that the
municipality should have records of the
complaints raised by members
of the public in respect of the electricity connections and, in fact,
had a duty to report the connections
if they were, as alleged,
illegal connections. She further alleged that the municipality should
have records, or knowledge of the
electrocution, from the report to
the Ward Councillor. In addition to this, although not alleged by Ms
F[...], there would have
been the police records that were available
to the municipality when the matter was referred to the police by Ms
F[...] shortly
after the electrocution.
14.
Mr Masayimane is an unemployed male who was born on the 1
st
of December 1983 and who also resided at A[…] T, Squatter
Camp, Komani. He was physically disabled as a result of his
electrocution
and his highest level of education was a Grade 11.
15.
On or about 19 February 2020, and at the squatter camp, Mr Masayimane
was electrocuted when he accidentally came into
contact with live
electric cables and this resulted in his hospitalisation.
16.
As a result of the electrocution he lost the use of his left arm,
which was permanently disabled, despite being treated
by Frontier
Hospital and undergoing physiotherapy.
17.
It was during May 2023 that he met a resident of the squatter camp
who advised him that he had a civil claim against the
municipality
and that he should refer the matter to an attorney.
18.
He consulted with an attorney on the 24
th
of June 2023,
and after investigation by the attorney, together with the obtaining
of medical records, the section 3 notice in
terms of the Act was
served on the municipality on the 3
rd
of October 2023.
19.
On the 11
th
of October 2023 the summons was issued and
served and he too has a substantial claim against the municipality in
the sum of R15 000 000.00
for
inter alia
general
damages, future hospital and medical expenses, future loss of
earnings/loss of earning capacity, and costs.
20.
The municipality served a special plea and plea-over on the 13
th
of December 2023 and raised the issue of prescription and
non-compliance with section 3 of the Act.
21.
When opposition to the application for condonation was filed, the
municipality alleged that the applicant was at all times
aware, or
ought reasonably to have been aware, of the identity of the
municipality and that he had a claim against the municipality.
22.
The municipality also alleged prejudice in receiving the section 3
notice so late, and once again alleged that the memories
of those who
needed to testify would not be reliable given the passage of time.
The municipality alleged that it would not be able
to locate records
of the alleged electrocution given the delay in receiving the notice.
This was the sole reason given for the
alleged prejudice.
23.
Mr Masayimane’s replying affidavit denied that there would be
any prejudice to the municipality in that the municipality
was able
to file a detailed plea in the matter and was accordingly able to
investigate and assess the claim. A further point was
made that the
municipality had records of the complaints and various other
complaints by members of the public. As the respondent’s
employees had a duty to report illegal connections, these records
must still exist.
24.
Mr Masayimane also indicated that it was in the interests of justice
that condonation be granted as the effect of dismissing
the
application would be that the doors of the court would be closed in
respect of his claims.
25.
In the matter of Madinda vs Minister of Safety and Security, Republic
of South Africa (2008) 3 All 143 (SCA). Heher JA
had the following to
say about section 3 of the Act:
“
[8] The
phrase if [the court] is satisfied”
in
s3(4)(b) has long been recognised as setting a standard which is not
proof on a balance of probability.
Rather it
is the overall impression made on a court which brings a fair mind to
the facts set out by the parties.
See
eg Die Afrikaanse Pers Beperk vs Neser 1948(2) SA 295(C) at 297.
I
see no reason to place a stricter construction on it in the present
context.”
26.
He went further to say that:
“
[10]
The second requirement is a variant of one well known in cases of
procedural non-compliance. See Towood Properties
(Pty) Ltd vs South
African Reserve Bank 1996(1) SA 215(W)
at
227I – 228F and the case in there cited. “
Good
cause”
looks at
all those factors which bear on the fairness of the granting of
relief as between the parties and as affecting the proper
administration of justice. In any given factual complex it may be
that some of many such possible factors become relevant. These
may
include prospects of success in the proposed action, the reasons for
the delay, the sufficiency of the explanation offered,
the bona fides
of the application, and any contribution by any other persons or
parties to the delay and the applicant’s
responsibility
thereto
”.
27.
And further at [12] … “
Good cause
for the delay is not simply a mechanical matter of cause and effect.
The court must decide whether the applicant has
produced exceptional
reasons for nullifying, in whole, or at least substantially, any
probability on his or her part which attaches
to the delay in serving
the notice timeously. Strong merits may mitigate fault; no merits may
render mitigation pointless. There
are two elements that play in
s4(b), viz the subject’s right to have the merits of his case
tried by a court of law and the
right of an Organ of State not to be
unduly prejudiced by delay beyond the statutory prescribed limit for
the giving of notice
...
…
calls
for the court to be satisfied as to the latter. Logically,
sub-paragraph (ii) is directed, at least in part, to whether the
subject should be denied a trial on the merits. If it were not so the
consideration of prospects of success could be entirely excluded
from
the equation on the ground that failure to satisfy the court to the
existence of good cause precluded the court from exercising
its
discretion to condone.”
28.
Heher JA went further at 18.3 to state the following …
“
Ignorance, inexperience, naivete, and
simply lack of intelligence, individually or in any combination,
could it seem to me, conduce
to a reasonable belief that, once a
complaint has been laid, the State, with the resources at its
disposal, and as what she described
in her reply as “the
primary agent for the protection and enforcement of …. legal
rights’ will follow it up”;
cf Mugwenas, above, at 155H –
156E. Indeed there is a provision in the Criminal Procedure Act (s)
300(1) which enables a
court to make a compensatory order having the
effect of a civil judgment, so that her belief finds some basis in
law as well.”
29.
Ms F[...], as in the Madinda
supra
case, consulted an attorney as soon as could reasonably
be expected, given her misconception, and he in turn reacted
expeditiously,
in my view. Mr Masayimane did so as well.
30.
As set out in Madinda
supra
,
the first leg of section 3 requires applicant to satisfy the court
that the respondent had not been unreasonably prejudiced by
the
failure to serve the notice timeously. In regard to prejudice, the
court had the following to say:
At [21] … “
The
approach to the existence of unreasonable prejudice (not simply any
level of prejudice, an aspect which the judgment of the
court a quo
blurs) requires a common sense analysis of the facts, bearing in mind
that whether the grounds of prejudice exists
often lies peculiarly
within the knowledge of the respondent. Although the onus is on an
applicant to bring the application within
the terms of the statute, a
court should be slow to assume prejudice for which the respondent
itself does not lay a basis.”
31.
In both Ms F[...]’s and in Mr Masayimane’s case, the
alleged prejudice was the fact that witnesses may not
recall events
and that the records would not be easily available. In argument, both
counsel accepted that a municipality is required
to keep records for
a number of years and these should be readily available. Especially
in circumstances where Ms F[...] had immediately
referred the matter
to a Ward Councillor and the South African Police Services. In my
view it is also significant that both cases
involved an electrocution
in the same area and in the same settlement. As the second
electrocution took place within two days of
the first electrocution,
this must have been a red flag for the municipality and its officials
and undoubtedly an urgent investigation
would have followed, where a
minor child had been electrocuted, and also an adult, within two days
of each other.
32.
In the matter of Le Roux and Another vs Johannes G Coetzee and Seuns
and Another 2024(4) BCLR 522(CC), the Constitutional
Court, in
dealing with prescription set out the principal as follows at [40]:
“
The knowledge
that section 12(3) contemplates could be either actual or deemed.
Actual knowledge relates to the subjective knowledge
that a creditor
requires of a fact are deemed knowledge which a creditor could have
acquired by exercising reasonable care.”
33.
In the Constitutional Court matter reference was made to prescription
matters against professionals and whether the claimant
became aware
of a debt, which had in fact arisen because of negligence on the part
of the professional defendant.
34.
The court in Le Roux
supra
went
further in dealing with prescription, by stating the following:
“
[55] …
Links tells us that in such situations, prescription would only start
to run when the creditor knows or on reasonable
grounds should know
that a wrong has been committed by an identified party and the facts
giving rise to it. It is then that the
creditor has knowledge of the
identity of the debtor and the facts from which the debt arises. That
prescription should start to
run from that point accords with the
language of s12(3), and gives effect to the rights in section 34 of
access to court and does
not unduly impede the right to a fair
hearing and that a debtor is also entitled to under section 34.”
35.
The relevance of prescription is that if a court is satisfied that a
debt has been extinguished by prescription, condonation
for the late
filing of the section 3 notice should not be condoned.
36.
In Shoprite Checkers (Pty) Ltd vs Mafate N.O. (CCT55/23)
[2024] ZACC
16
the Constitutional Court stated the following principal in dealing
with a litigant’s rights:
“
[39]
An overarching constitutional imperative in the interpretative
exercise is to be found in section 39(2) of the
Constitution, which
provides that “[w]hen interpreting any legislation, and when
developing the common law or customary law,
every court, tribunal or
forum must promote the spirit, purport and objects of the Bill of
Rights.”
Each side is appealing
to a right protected in the Bill of Rights. Each calls in aid section
34 of the Constitution. The question
that arises is: Whose appeal to
section 34 must take precedence?”
37.
And further at paragraph [41] the court stated the following:
“
In this case as
well, a balancing exercise is called for. It matters not that the
adversaries rely on the same right that is section
34 of the Bill of
Rights. The point is that each party relies on the right to advance
different interests in the interpretative
exercise. Shoprite Checkers
is advancing the interest that there must be finality to litigation
as otherwise there may be no fairness
in a trial that takes place
when the memory of witnesses has faded, when evidence has been lost
and when witnesses have died or
are no longer available for whatever
other reason. On the other side, the question is one of preserving
the right of access to
courts for as long as there is a section 13(1)
impediment.”
38.
In the present two matters it is this balancing of rights that needs
careful consideration. The right of the municipality
to have finality
in litigation and the rights of the applicants to have their matters
heard in court.
39.
In the matter of Truter and Another vs Deysel 2006(4) SA 168 (SCA)
the court had to deal with the date upon which the
running of
prescription commenced. Van Heerden AJ had the following to say at
16:
“
In a deliction
claim, the requirements of fault and unlawfulness do not constitute
factual ingredients of cause of action, but are
legal conclusions to
be drawn from the facts:
‘
A cause of
action means the combination of facts that are material for the
plaintiff to prove in order to succeed with his action.
Such facts
must enable a court to arrive at certain legal conclusions regarding
unlawfulness and fault, the constituent elements
of an actual cause
of action being a combination of factual and legal conclusions,
namely a causative act, harm, unlawfulness
and culpability or fault.”
40.
At paragraph 18 the court went further to state that:
“
Cause of
action” for the purposes of prescription thus means –
‘…
. every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment
of the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved.”
41.
Further, at 19 … “
as indicated
above, the presence or absence of negligence is not a fact; it is a
conclusion of law to be drawn by the court in all
circumstances of
this specific case. – Section 12(3) of the Act requires
knowledge only of the material facts from which
the debt arises for
the prescriptive period to begin running – it does not require
knowledge of the relevant legal conclusions
(that the known facts
constitute negligence) or of the existence of an expert opinion which
supports such conclusions.”
42.
In the matter of Dike vs Minister of Police and Another (2023)
ZAECBHC at 15, Norman J found that in refusing condonation
would
amount to a refusal of an opportunity to ventilate all the issues
before the trial court. In that matter, the applicant alleged
that
there was no prejudice as the respondents were the custodians of the
case docket, relevant registers, files and statements
relating to the
applicant’s arrest, detention, assault and prosecution.
43.
The court also found that it was not a legal impediment to seek legal
advice and in fact it was prudent to do so as not
every arrest would
result in an action for damages. In that matter, the applicant also
alleged that she was not aware of her rights
as she was not
au
feit
with the concept of arrest. In fact, as
in these matters, she was not even aware that she had a claim against
the Minister of Police.
Norman J stated that following:
“
[29]
After the institution of the action, the first respondent pleaded to
the combined summons and raised prescription as
a special plea. The
fact that prescription is being raised as a special plea does not on
its own mean that the claim has in fact
prescribed. Prescription is a
legal defence which may warrant the leading of evidence at the trial
and the trial court will decide
whether the matter is indeed
prescribed. The respondent does not advance any facts whatsoever upon
which he based his contention
that the applicant had knowledge of the
identity of him as the debtor more than three years before the action
was instituted.”
44.
I am satisfied on the facts alleged by Ms F[...] and Mr Masayimane,
and on the pleaded cases, that the applicants have
given an adequate
explanation for the delay in giving the section 3 notice. In Ms
F[...]’s matter, the claim of the minor
child, in any event,
has not prescribed and this is not a factor to consider. The only
factor for consideration was whether her
personal claim had
prescribed. The periods of delay are also not excessive, in the
circumstances.
45.
I am also not convinced that the prejudice alleged by the
municipality is real in that, as a municipality, they are required
to
keep the necessary records of any incident such as electrocutions
under their control for a considerable period of time. Not
only did
Ms F[...] refer this matter to a Ward Councillor, she also referred
the matter to the South African Police Services and
who, in turn,
opened an investigation and a docket.
46.
I am also persuaded by the argument that the municipality was able to
plead fully to the particulars of claim and will
be able to call all
the necessary witnesses, and produce all the necessary evidence, in
defence of the claims.
47.
The municipality has also failed in each matter to plead any facts
which can result in a conclusion that the plaintiffs
were aware of
their right to claim as early as the date when the causes of action
arose. The opposing affidavits and the pleadings,
in the main
actions, are silent on this issue.
48.
The overall impression, applying a fair mind to the facts set out in
the papers, is that the applicants were unaware of
their right to
claim and this ignorance may well have stemmed from the fact that
they were inexperienced and naïve litigants
from a previously
disadvantaged background.
49.
I find that both the applicants fall into the category of
disempowered and marginalised people, given their socio-economic
status as set out by the Constitutional Court in Road Accident Fund
and Another vs Mdeyide 2011(2) SA 26(CC).
50.
On the basis of the evidence given by both Ms F[...] and Mr
Masayimane I cannot find that their right to claim has in
fact
prescribed. The fact that prescription has been raised in the special
plea does not, on its own, mean that the claim has in
fact
prescribed. As indicated in the Dike vs Minister of Police matter
supra
prescription is
a legal defence which may warrant the leading of evidence at the
trial and the trial court will in due course decide
whether the
matter has indeed prescribed.
51.
The following order is made:
51.1 Condonation is
granted for the applicants’ failure to serve the notices
contemplated in
section 3(1)(a)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
within the
period laid down in section 3(2)(a) of the Act;
51.2 The respondent
is to pay the costs of the applications on scale B in terms of rule
69(7).
B.B.
BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant:
Instructed
by:
Adv.
Madokwe
N.
Tyatyeka Attorneys
c/o
Msitshana Attorneys
72
Hill Street
MAKHANDA
(REF.:
NIT/QTN/CIVIL 2020 – Z. F[...])
Counsel
for Respondent:
Instructed
by:
Adv.
Booysen
Phillip
& Partners Attorneys
c/o
Yokwana Attorneys
10
New Street
MAKHANDA
(REF.:
Mr Phillip/Mr Yokwana)