IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: BHISHO)
NOT REPORTABLE
CASE NO: 126/2022
In the matter between:
BERGSIG SPECIAL SCHOOL APPLICANT/PLAINTIFF
AND
THE MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF EDUCATION,
EASTERN CAPE PROVINCE FIRST RESPONDENT/ FIRST DEFENDANT
THE HEAD OF THE DEPARTMENT,
DEPARTMENT OF EDUCATION,
EASTERN CAPE PROVINCE SECOND RESPONDENT/SECOND DEFENDANT
__________________________________________________________________
JUDGEMENT
__________________________________________________________________
FLYNOTES
a) A court may raise a legal issue mero motu where it considers an error of law
to be made.
b) A claim for unjust enrichment is not a “debt” as defined in section (1) of Act 40
of 2002 and/or at least because it is not a claim for damages. The absence of
a notice in terms of Act 40 of 2002 therefore does not bar the enrichment
claim.
PIENAAR AJ
INTRODUCTION
1. I shall refer to the parties as they are referred to in the pleadings, namely as
the plaintiff, the first defendant and the second defendant. Collectively I shall
refer to the first and second defendants as the defendants.
2. The plaintiff has brought an application requesting the following relief:
2.1 Directing that the plaintiff’s failure to comply with section 3 of the
Institution of Legal Proceedings against Certain Organs of State 40 of
2002, for its failure to comply with section 3 of the said Act (to the
extent that the plaintiff’s demand was not made within 6 months from
the date on which the debt became due as envisaged in section 3(2)
of the said Act), be condoned.
2.2 Directing that the defendants pay the costs of the application in the
event of them opposing same.
3. The plaintiff’s claim against the defendants is for the payment of monies
expended by it on behalf of the Department of Education, Eastern Cape
Province (the Department) for having paid for support staff, also known as
non-educator staff which the Department allocated to the plaintiff. It is
essentially an unjust enrichment claim, for the sum of R 4 951 042.00. At
paragraph 18 of its particulars of claim, the plaintiff pleads that the defendants
were unjustly enriched at the expense of the plaintiff in the aggregate sum of
R 4 951 042.00.
4. In answer to the plaintiff’s particulars of claim the defendants filed two special
pleas, namely 1) that the plaintiff had not complied with the provisions of the
Institution of Legal Proceedings against Certain Organs of State 40 of 2002
(Act 40 of 2002) (the first special plea) and 2) that the plaintiff’s claim had
prescribed (the second special plea).
5. More specifically in relation to the defendants’ first special plea, they pleaded
that the plaintiff had failed to comply with the provisions of section 3 (2) (a),
read with section 3 (3) (a) of Act 40 of 2002) in that, the plaintiff’s statutory
notice was not served on the defendants within the 6 months as prescribe d in
Act 40 of 2002. In the circumstances, the plaintiff should be barred from
proceeding with the action and its claim should be dismissed, with costs.
6. By virtue of the second plea, the defendants pleaded that the plaintiff served
summons upon the defendants on 4 September 2020, which was a date more
than 3 years from the date upon which the alleged cause of action arose.
Accordingly, the plaintiff’s claim against the defendants had prescribed in
terms of section 11 (d) of the Prescription Act, 68 of 1969 . In view of the
aforegoing, the defendant prayed that the plaintiff’s claim be dismissed, with
costs.
7. Before me, Adv Wood appeared on behalf of the plaintiff and Adv Mayekiso
appeared on behalf of the defendants.
FURTHER SUBMISSIONS
8. During argument, on 26 June 2025, it occurred to me (I only received the
papers the day before) that Act 40 of 2002 possibly did not apply as a claim
for unjust enrichment was not a claim for damages as envisaged by Act 40 of
2002.
9. (Section 3 (1) of Act 40 of 2002 provides therefore that no legal proceedings
for the recovery of a debt1 may be instituted against an organ of state unless
the necessary statutory notice has been served on the relevant organ of state
within six months from the date on which the debt arose.
In the definition section of Act 40 of 2002 a debt is described as meaning any
debt arising from any cause of action—
(a) which arises from delictual, contractual or any other liability, including a
cause of action which relates to or arises from any—
(i) act performed under or in terms of any law; or
(ii) omission to do anything which should have been done under or in
terms of any law; and
(b) for which an organ of state is liable for payment of damages,2 whether
such debt became due before or after the fixed date;)
10. During argument I questioned counsel on this aspect, but I did not hold them
to their submissions as this point was not an issue between the parties until I
raised it.
11. After the matter was adjourned, I performed legal research on this aspect and
on 29 June 2025 I emailed the following letter to counsel:
“You will recall that during argument on Thursday I questioned whether a
claim for unjust enrichment was a claim for damages in terms of the Institution
1 Own emphasis
2 Own emphasis
of Legal Proceedings against Certain Organs of State Act 40 of 2002 (Act 40
of 2002). You made certain submissions, but I do not hold you thereto as this
point was not an issue between the parties until I raised it.
Would you kindly have regard to the judgements by the Supreme Court of
Appeal (the SCA) and the Constitutional Court in the matter of Greater
Tzaneen Municipality v Bravospan, attached above.3
In such matter, Bravospan claimed monies from the municipality for security
services rendered (paragraph 5 of the SCA judgement). The High Court held
that Bravospan had made out a case against the municipality based on unjust
enrichment and declared the municipality liable t o pay an amount to be
determined (paragraph 7).
One of the arguments raised by the municipality was that there was a failure
to comply with the provisions of Act 40 of 2002 (paragraph 9). At the hearing
of the matter before the SCA, counsel for the m unicipality conceded that the
claim for unjust enrichment was not a "debt" as defined in section (1) of Act 40
of 2002 and/or at least because it was not a claim for damages . Thus,
according to the SCA, it was rightly conceded by the municipality that Act 40
of 2002 was not applicable to the enrichment claim, and the absence of a
notice in terms of the Act did not therefore bar the enrichment claim. This
defence therefore had to fail (paragraph 11).
The SCA further held that South Africa has yet to recognise a general claim
for unjustified enrichment. The High Court order granting Bravospan's claim
for unjust enrichment was therefore not sustainable in law (paragraph 15). In
the particular circumstances of the case the SCA set the order of the High
Court aside and declared that Bravospan was entitled to compensation for the
services rendered as a just and equitable remedy under section 172 (1) (b) of
3 The SCA judgement' s reference is Greater Tzaneen Municipality v Bravospan 252 CC
3 The SCA judgement' s reference is Greater Tzaneen Municipality v Bravospan 252 CC
(428/2021) [2022] ZASCA 155 (7 November 2022) and the Constitutional Court judgement's
reference is Greater Tzaneen Municipality v Bravospan 252 CC 2025 (1) SA 557 (2 October
2024)
the Constitution. The SCA further referred the matter back to the High Court
to determine the quantum of the compensation (paragraphs 23 and 24).
Leave to appeal to the Constitutional Court was refused.
Could you kindly submit argument in the following regard:
1. The impact of the Bravospan judgements on the present matter.
2. Submissions on the order to be granted by me.
3. Whether I am entitled to raise this point mero motu (see also the
Constitutional Court judgement at paragraph 36)
Could you kindly, if possible, make your submissions within one week hereof,
or such further period granted by me on request.
Could you and the attorneys involved kindly acknowledge receipt.”
12. Both counsel filed further written submissions, in the time requested. I am
indebted to counsel.
13. In his further written submissions, Mr Wood essentially submitted that:
13.1 Although South African law has not yet recognised a general
enrichment action, in the circumstances of this particular matter it
would be manifestly unjust for the plaintiff to be afforded no
compensation for the services it rendered in the place and stead of the
defendants.
13.2 They are exceptional circumstances warranting an order for
compensation namely section 172 (1) (b) of the Constitution.
13.3 The plaintiff as per the plaintiff’s particulars of claim has set out
sufficient particularity for section 172 (1) (b) to be applicable.
13.4 The impact of the Bravospan judgement is applicable.
13.5 The plaintiff’s claim is not a debt as defined in section 1 of Act 40 of
2002 and/or at least because it is not a claim for damages.
13.6 The court should order that it was not necessary for notice to have
been given and that prescription cannot be adjudicated upon at present
and will require full ventilation when the matter proceeds to trial.
13.7 As a result of the defendan ts’ lack of action, the plaintiff was entitled to
institute the proceedings and the application and is accordingly entitled
to the relief prayed for plus costs, as per scale B.
13.8 However, if the court finds in favour of the defendants, it is submitted
that no order be made in favour of the defendants.
14. Mr Mayekiso, on the other hand, essentially submitted as follows:
14.1 Our law has not yet recognised a general enrichment action.
14.2 The claim by the plaintiff is a “debt” as defined in section 1 of Act 40 of
2002 and the defendant are therefore entitled to raise the objection for
non-compliance with the required timeframes for service of a statutory
notice.
14.3 The basis of the plaintiff’s action is couched in an alleged negligent
omission to provide the required educational support.
14.4 Such a scenario fits the definition of a “debt” of Act 40 of 2002 as it is
described as contractual or other act or omission under a law or legal
system in the educational sector.
14.5 The unjust enrichment phrase at paragraph 18 (of the part iculars of
claim) has merely been inserted as a catch all phrase and does not
change the cause of action as this being an alleged negligent omission
which is properly covered by the definition of a “debt” in the Act. The
provisions of Act 20 of 2002 are therefore applicable.
14.6 The court is called upon to dismiss the application and to uphold the
special plea of the defendants. The relief sought by the plaintiff has
also prescribed.
14.7 The court is empowered to raise a point of law mero motu if same is
apparent from the pleadings.
14.8 In the Bravospan judgement the plaintiff was granted constitutional
damages and not an enrichment claim.
14.9 The alleged debt has prescribed and there is no good cause proffered
for the late issuing of the statutory notice as well as the late issuing and
service of summons in order to interrupt the running of prescription.
14.10 The court is therefore requested to grant an order dismissing the
condonation application.
DISCUSSION
Mero Motu
15. None of the parties objected to me raising the point under discussion mero
motu. In the Constitutional Court judgement in Bravospan it is stated 4 that
prior precedent supports the right of a court to raise a legal issue mero motu
where it considers an error of law to be made.
4 Paragraph 36
16. I accordingly find that I am entitled to raise the point under discussion mero
motu and deal with it. No fingers are pointed at the legal representatives. The
law is a minefield.
Application in terms of Act 40 of 2002 and ancillary issues
17. In accordance with the SCA judgement in Bravospan I hold that a claim for
unjust enrichment is not a “debt” as defined in section (1) of Act 40 of 2002
and/or at least because it was not a claim for damages. The absence of a
notice in terms of Act 40 of 2002 did not therefore bar the enrichment claim.
18. The defendants’ first special plea, namely that the plaintiff had not complied
with the provisions of Act 40 of 2002, is accordingly not sustainable in law in
that it was not necessary for the plaintiff to comply with these provisions as its
claim was for unjust enrichment.
19. It follows that the plaintiff’s application in terms of Act 40 of 2002 was also not
sustainable in law and unnecessary. The application stands to be dismissed.
20. Mr Wood has submitted that the plaintiff as per the plaintiff’s particulars of
claim has set out sufficient particularity for section 172 (1) of the Constitution
to be applicable. Mr Wood submits that there are exceptional circumstances
warranting an order for compensation in terms of section 172 (1).
21. However, this is not something before me and will need to be entertained by
the trial court.
22. Mr Mayekiso has submitted that the basis of the plaintiff’s action is couched in
an alleged negligent omission to provide the required educational support.
Such a scenario fits the definition of a “debt” as defined in Act 40 of 2002. The
unjust enrichment phrase at paragraph 18 of the particulars of claim has
merely been inserted as a catch all phrase according to Mr Mayekiso.
23. Paragraph 18 reads that “As a result of the aforesaid, the defendants were
unjustly enriched at the expense of the plaintiff in the aggregate sum of R 4
951 042 .00”. Unjust enrichment, in my view, is the basis of the plaintiff’s claim
and not a “negligent omission”. To hold that a negligent omission is the basis
of the plaintiff’s claim would be stretching the particulars of claim, something
that I am not entitled to do.
24. Mr Wood has submitted that this prescription cannot be adjudicated upon at
present and will require full ventilation with the matter proceeds to trial. This,
in my view, is a sound proposition.
CONCLUSION
25. I accordingly conclude that the application stands to be dismissed for the
reasons set out above.
26. In respect of costs and as the issue on which the application stands to be
decided was not raised by the parties, but by me, I believe it only fair that
there should be no order as to costs.
ORDER
27. I accordingly issue the following order:
27.1 The plaintiff’s application for condonation in terms of the provisions of
the Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002, is dismissed.
27.2 There shall be no order as to costs.
_______________________________
B J PIENAAR
ACTING JUDGE OF THE HIGH COURT
Date heard: 26 June 2025
Further submissions received by: 4 July 2025
Date of judgement: 4 August 2025
For the plaintiff: Adv Wood
Messrs O’ Brien Incorporated
C/O Messrs Hutton & Cook
No 75 Alexandra Road
KING WILLIAM’S TOWN/ QONCE
Ref: Mr GC Webb
For the defendants: Adv Mayekiso
The State Attorney
Ground Floor, Old Spoornet Building
17 Fleet Street
EAST LONDON
a Ref: Mrs Ncula