REPUBLIC OF SOUTH AFRICA
IN THE HIGH C OURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1) REPORTABLE : YES/NO
(2) OF INTERES T TO THE JUDGES YES /NO
(3) REVISED : YES/NO
In the matter between:
DEPAR TM ENT OF TRANSPORT
AND COMMUNITY SAFETY .
and
BENNY DR IVER TRA INING C.C.
DUMEZULU DRIVING SCHOOL C .C
LOTSHA DRIVING SCHOOL (PTY )L TD
ADV. N .S. RAMAKGHOAKGOA
JUDGMENT
CASE No : 6307 /2023
APPLICANT
151 RESPONDENT
2nd RESPONDENT
3rd RESPO ND ENT
4th RESPO ND EN
Page -2
DIAMOND A J:
(1) The sequence of events leading up to this application as well as
this application itself serves as a clear indication why section 2(1)
of the State Liability Act, 1957 (Act No. 20 of 1957) should be
adhered to meticulously: Section 2 (1) reads as follows:
"2. Proceedings to be taken against executive authority of
department concerned. -
(1) In any action or other proceedings instituted against a
department. the executive authority of the department concerned
must be cited as nominal defendant or respondent.
(2) The plaintiff or Applicant, as the case may be. or his or her
legal representative must- .. "1
[2] The Respondents alleged they entered into an agreement with the
Applicant to render certain services, including driving lessons to
the youth in Limpopo Province.
[3] This agreement is contained in what is called, a Service Level
Agreement.
[4] The Applicant contends that this Service Level Agreement was
void ab initio.
1 Emphasis added.
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[5] The three Respondents decided to institute legal action against
the Applicant for what they believe was breach of contract by the
Applicant.
[6] Since the Service Level Agreement contained an Arbitration
Agreement, the three Respondents commenced arbitration
proceedings against the Applicant.
[7] The parties held a pre-arbitration meeting during which it was
agreed that the arbitration proceedings would be done in
accordance w ith the Uniform Rules of Court.
[8] The Respondents filed a Statement of Claim, and the Applicant
filed a counterclaim as well as a Statement of Oefense. The
Respondents filed a defense to the counterclaim, and the
Applicant thereafter filed a Replication to the defense on the
Counterclaim. In this replication. The Applicant raises non-joiner,
as a defence stating that the proceedings cannot proceed since
the Respondents failed to join the Member of the Executive
Council for the Department of Transport for the Limpopo Province.
[9] The Respondents thereafter filed a notice to remove an irregular
proceeding. The irregular proceeding being the fact that the
Applicant raised the non-joinder in its replication and argued that
it should have been raised in defense to the claim.
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[1 O] The Respondents also brought an application for the joinder of the
MEC.
[11] There were several attempts to set the argument of the irregular
proceedings as well as the application for joinder down to be
argued. The papers reveal that there were quite a lot of back and
forth between the Applicants, the Respondents, and the Arbitrator.
I do not deem it necessary to go into the details of these
communications.
[12] Eventually, the Arbitrator delivered a judgment and while referring
to Section 2 (1) of the State Liability Act, the Arbitrator also ruled
that the MEC was a necessary party that it has a substantial
interest in the proceedings and should therefore be joined. The
fol lowing order was made : "The second respondent is joined in the
action between Applicants and First Respondent." The Second
Respondent being referred to is the Second Respondent identified
as such in the application for the joinder of the MEC.
[13] In my view, there are two issues that need to be considered at
this stage.
[14] Firstly, the question can be asked whether valid proceedings were
at all instituted by these attempted arbitration proceedings in the
first instance.
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[15] The initial arbitration proceedings were instituted against the
"Department" of Transport. This is in clear contravention of
Section 2(1) of the State Liability Act, which stipulates that when
proceedings are instituted against the State, it shall be done
against the Executive Authority, and in particular, the M inister or
the Member of the Executive Council of the D epartment which are
involved.
[ 16] Section 2 ( 1) states explicitly "in any action or other proceedings".
In my view, "other proceedings" are deliberately framed widely,
and it therefore includes arbitration proceedings.
[17] In my view , there is a second reason w hy it cannot be said that
valid arbitration proceedings were instituted in the above
proceedings.
[18] In Die Spoorbond and Another v South African Railways2, The
court is stated as follows:
" 'The Governor-General-in-Council (whom I shall call the Crown
and who is also sometimes referred to as the Government of the
Union) is regarded in law as a legal persona, with a perennial
existence, and as such, a legal persona distinct from the individual
human beings or group of persons who from time to time hold
office as Governor-General and as members of the Executive
Council, just as the King or the Crown in England is regarded as
a corporation sole with a perpetual existence, and, as such,
distinct from His Majesty the King.'
z 1946 /\D 999 at P. I 005.
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[19] The legal position that the executive authority (the government) of
the state is indeed a legal person that can sue and be sued in its
own name , as confirmed in Die Regering van die Republiek Van
Suid-Afrika v Santam Versekeringsmaatskappy Bpk 1964 (1) SA
546 (W).
[20] Section 125 of the Constitution of the Republic of South Africa,
1996, states that the executive authority of a Province is vested in
the Premier of that Province, and that Members of the Executive
council of a Province are responsible for the functions of the
executive assigned to them by the premier.
[21] A government department is therefore not part of the executive,
but it is part of the state administration. A Department is
consequently not a legal person and cannot sue and be sued in
its own name.
[22] In my view, therefore, both the Applicant, the Arbitrator, and the
Respondents were misplaced in the above proceedings with their
assumption that legal arbitration proceedings were indeed
instituted against the Department. The Department is not a legal
person and cannot be sued.
[23] This conclusion brings up a second dilemma for the deponent,
which describes itself to be authorised by the Department to bring
this application.
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[24] PARAGRAPH 5 of the Founding Affidavit states explicitly that:
"The Applicant is the Depa,tment of Transpo,t and Community
Safety ("the Applicant"), the Depaftment responsible for the
implementation of Provincial Transpo,t matters, with its offices at
Phamoko Towers, Coiner, Bodenstein and Church Street,
Polokwane, Limpopo Province."
[25] In my view, based on the above description, the Department is
certainly not part of the executive authority and is therefore not a
legal person capable of suing and being sued. The appropriate
Applicant would have been the Member of the Executive Council
who should have approached this court with an application for
appropriate relief, possibly a declaratory order, declaring that the
arbitration proceedings were null and void ab initio.
(26] In any event, any attempt to enforce an abortive award which may
follow out of the above proceedings will most certainly not be
enforceable since it is inconceivable that such an award will ever
be made an order of court in terms of section 31 of the Arbitration
Act for the reasons set out above.
[27] The question that now arises is whether the deponent to the
founding affidavit should be ordered to pay the costs of the
Respondents in this application, since the deponent initiated
abortive proceedings before this Court.
[28] I do not think that it would be fair to burden the Deponent w ith a
cost order.
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[29] All parties to these proceedings were, in my view, misguided.
Apart from that, when reading through the substance of the
application. one must concede that the deponent points to several
procedural missteps which could have been a basis to set the
interim award aside.
[30] In my view, the appropriate order with regard to costs will be that
there shall be no order as to costs.
I consequently make the following order:
a. The application is struck from the roll.
b. There is no order as to costs.
APPE A R A NCES:
DIAMONDAJ
ACTING JUDGE OF
THE HIGH COURT
LIMPOPO DIVISION,
POLOKWANE
HEARD ON : 24 M arch 2025
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JUDGMENT DELIVERED ON :29 August 2025. This
FOR THE APPLICANT
INSTRUCTED BY
FOR RESPONDENTS
judgment was handed
down electronically by
circulation to the
parties' representatives by
email. The date and time for
hand-down of the judgment
is deemed to be 29 AUGUST
2025.
: Adv EK Tsatsi SC
The State
(Ref:728/18/MC)
Email
Attorney
Matuba Ma pony a
Attorneys(Ref: HCL093/18)
Email: matumapo@gmail.com