IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , PRETORIA)
( l) RE PO RTAB LE: NO
(2) O F INTE REST TO OTH ER JUDG ES: NO
(3) RE V ISED : N O
(4) DA TE: 04 N OV EM BER 2025
(5) SIGNATUR E: C .J CO LLIS J
In the matter between:
BROOKWAY PROP ERTIES 30 (PTY) LTD
And
THE C ITY OF TSHWAN E
M ETRO POLITAN MUNIC IPA LITY
CASE NO: 33786/2010
App licant/Plaintiff
Respondent/De fendant
This judgment is issued by the Judges whose names are reflected herein
and is submitted electronically to the parties/their legal representatives by
email. The judgment is further uploaded to the electronic file of this matter
on CaseLines by the Senior Judge’s secretary. The date of this judgment is
deemed to 04 November 2025.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
COLLIS J
INTRODUCTION
1] The present application is brought in terms of section 3(4)(b) of the
Institution of Legal Proceedings Against Certain Organs of State Act, Act 40
of 200 2 (“the Act ”). The applicant is seeking condonation for the late
delivery of its Notice of Intended Legal Proceedings against the respondent
as provided for in terms of section 3(2) of the Act.
2] The applicant contends that Section 3(1) and (2) of the Act are not
applicable as its claim against the respondent is not a “debt” as defined in
the Act but in essence a referral to oral evidence of the applicant’s claim for
constitutional damages/compensation in respect of the eviction application
with case number 33786/2010.
3] The referral of the applicant’s claim for constitutional
damages/compensation to oral evidence, is in accordance with the court
order with case number 33786/2010 granted by Murphy J dated 30
September 2010 1 and as per the Deputy Judge President’s directions
contained in the pre-trial minute dated 5 December 2019.2
4] It is common cause between the parties that the respondent failed to
comply with the above court order.
5] The applicant’s claim against the respondent is for a declaratory order
that the respondent’s failure to comply with the said court order constitutes
an infringement of the applicant/plaintiff’s constitutional rights protected in
terms of section 25(1) of the Constitution of the Republic of South Africa .
If the declaratory order is granted, the applicant also seeks payment of
constitutional damages, alternatively compensation.
6] As per the issued Notice of Motion the applicant is seeking the following
relief:
“1. Condonation be granted to the Applicant in respect of the
Applicant’s non -compliance with sections 3(1)(a) and (2) of the
1 Annexure “B2” – Condonation Application - Court order by Murphy J – Caselines
D42 0 D46.
2 Annexure “B3” – Condonation Application – Pre-Trial Minutes and Directions of
the Acting DJP Potterill – D47 D49.
Institution of the Legal Proceedings Against Certain Organs of State
Act, 40 of 2002;
2. Cost, only in the event of this application being opposed;
3. Further and/or alternative relief.”
FACTUAL CHRONOLOGY
7] The relevant factual chronology can be set out as follows:
7.1 On 10 June 2010, the applicant launched an application for the eviction
of occupiers from its land against the City provid ing alternative
accommodation to the occupiers and also seeking compensation from the
City.3
7.2. On 30 September 2010 Murphy J delivered a judgment in the
applicant's application. In terms of the judgment and order, it was directed
that the claim for compensation is postponed sine die , and that the
application for the payment of and the quantification of such compensation
shall be referred to oral evidence on such date as to be determined by the
Deputy Judge President.4
3 CaseLines C1 and B115.
4 CaseLines C1409 and C1445.
7.3. On 7 February 2020, after receiving a directive from the Deputy-Judge
President on the 5 December 2019, the applicant filed a declaration alleging
a constitutional breach by the City and claiming constitutional damages.5
7.4. On 16 March 202 0, the City filed two special pleas, (the second one
which is relevant for purposes of this application for condonation), in which
the City pleaded that the applicant has failed to give notice in terms of
Section 3 of the Institution of Legal Proceedings Against an Organ of State
Act, 40 of 2002.6
7.5. On 23 April 2020, the applicant filed a replication to the respondent’s
special pleas.7
7.6. On 15 September 2021 , the applicant brought an application for
condonation, ex abudanti cautela, for non-compliance with Section 3 of the
Institution of Legal Proceedings Against an Organ s of State Act, 40 of
2002.8
7.7. On 31 January 2022 , the City filed an answering affidavit, opposing
the application for condonation brought by the applicant.9
5 CaseLines 8204 to 8219.
6 CaseLines 8148 to 8154
7 CaseLines 8181.
8 CaseLines D155-D189.
9 CaseLines D155 - 0189.
7.8. On 28 June 2022 , the applicant filed a replying affidavit in the
application for condonation.10
7.9. On 6 November 2022 , the applicant delivered a notice in terms of
Section 3 the Institution of Legal Proceedings Against Certain Organs of
State Act, 40 of 2002.11
7.10. On 23 April 2023, the applicant delivered its Amended Replication to
the Respondent's Special Pleas.12
7.11. On 28 July 2023, the applicant delivered its amended Declaration.13"
8] The applicant has approached the Court for relief, in so far as it may be
necessary, essentially for condonation to be granted in terms of section 3
(4)(a) of the Act for the delay in delivering its Notice of Intended Legal
Proceedings in terms of section 3(1) and (2) of the Act. The application is
opposed by the respondent.
9] In this opposed application this Court is called upon to determine the
following:
10 CaseLines 0192 - 0205.
11 CaseLines 0150
12 Case Lines 8181 & 0177.
13 Case Lines 8204.
9.1. Whether the applicant's claim for constitutional damages was originally
sought by the applicant when it first entered the court?
9.2. Whether the applicant's claim for constitutional damages against the
City is simply a continuation of existing proceedings under the same case
number or de novo proceedings?
9.3. Whether the applicant’s claim for constitutional damages is subject to
the provisions of the Institution of Legal Proceedings Against Certain
Organs of State Act, 40 of 2002? In this respect:
9.3.1 Whether the applicant's claim for constitutional damages is a
"debt” as envisaged by the Prescription Act 68 of 1969 or sections
3(1) and (2) of the Institution of Legal Proceedings Against Certain
Organs of State Act, 40 of 2002.
9.4. In the event of the Institution of Legal Proceedings Against Certain
Organs of State Act, 40 of 2002, being applicable:
9.4.1. Whether the debt has been extinguished by prescription;
9.4.2.Whether a good cause exist for the condonation of the failure by the
applicant;
9.4.3. Whether the City will be unreasonably prejudiced by the failure to
give timeously notice in terms of the Institution of Legal Proceedings
Against Certain Organs of State Act, 40 of 2002.
10] Thus, if the Court finds that constitutional damages were not originally
sought and are subject to both Acts, then the Court must find that the
applicant should have sought condonation in terms of the Act for the late
filing of the action. But, in that condonation, the applicant must show that
its claim for constitutional damages has not prescribed otherwise
condonation cannot be granted.
11] In essence it is the applicants ’ case that constitutional
damages/compensation is not a “debt” as defined and envisaged in the
Prescription Act because the adju dication of the applicant’s claim against
the respondent is a referral to oral evidence as per court order and the
directions of the DJP of this Division.
12] Consequently, the applicant reasons that the provisions of the Act in so
far as the giving of notice of intended legal proceedings do not find
application in the present matter.
13] The applicant has however, purely ex abundante cautela, nevertheless
delivered a Notice in terms of section 3(1) of the Act on 6 November 2020,14
14 Annexure “B22” – Condonation Application – Notice i.t.o s 3(1)&(2) of ILPOSA
this pursuant to the respondent’s Special Plea dated 16 March 2020, relying
on the applicant’s failure to deliver a Notice in terms of section 3 (1) &
(2)(a) of the Act.
14] On the other hand, the respondent contends that firstly, the applicant
did not initially, in the eviction application, seek constitutional damages,
which damages are different from ‘compensation’ as originally sought. The
applicant in its claim in 20 10 was predicated on a claim for occupation al
rent, alternatively delict. The cause of action now being raised in its 2020
declaration for constitutional damages is a completely new and different
claim, which has prescribed.
15] Secondly, the claim for constitutional damages is a ‘debt’ as defined in
terms of the Institution of Legal Proceedings Against Certain Organs of
State Act, which has prescribed. The applicant must therefore obtain
condonation before it can proceed with it.
16] Thirdly, the Court cannot grant condonation in instances where a claim
has prescribed.
BACKGROUND
dated 6/11/2020 - Caselines D150 – D152.
17] As mentioned in paragraph 7 .1 supra, on 10 June 2010 the applicant
brought an urgent application to evict certain individuals who were accused
of unlawfully occupying its property. In paragraphs 3 and 4 in Part B of the
notice of motion, the applicant sought the following relief:
“3. That the Third Respondent be ordered to give the First and Second
Respondents alternative accommodation after making a full audit of
the particulars of each and every of the unlawful occupiers, occupying
the vacant land at the date of the said Court order, which alternative
accommodation has to be provided at the date when the eviction
order becomes effective, which date has to be determined by the
Honourable Court;
4. Further alternatively to Paragraph 3, that the Third Respondent be
ordered to give the First and Second Respondents alternative
accommodation after making a full audit of the particulars of each
and every of the unlawful occupiers of the vacant land, at the date of
the Court order, which accommodation has to be provided at the
date when the eviction becomes effective, which date has to be
determined by the Honourable Court, and the Third Respondent be
ordered to pay the Applicant compensation for the d uration of the
unlawful occupation of the vacant by the said First and Second
Respondents, which compensation will be payable until the date of
the eviction of the unlawful occupiers and/or the provision of the
alternative accommodation to unlawful occupiers and/or excavation
of the land in which compensation is calculated at R991 666,00 per
month;”
18] In the eviction application, the first respondent was the alleged unlawful
occupiers whereas the Municipality/City was cited as the third respondent.
19] On a proper interpretation of paragraph 4 of the notice of motion, the
respondent argued, the applicant sought that the Municipality be held liable
for compensation in the form of occupational rent from the period of the
unlawful occupation by the unlawful occupiers until their eviction or
provision of the alternative accommodation by the Municipali ty or
excavation of the vacant land. The applicant thus sought compensation for
the entire period of the occupation , regardless of the fact that an eviction
order was yet to be obtained and despite that the Municipality’s obligation
to provide alternative accommodation to the unlawful occupiers would only
arise after the eviction application had been granted.
20] As already mentioned, on 30 September 2010, Murphy J granted an
order evicting the unlawful occupiers, with a further order that the
Municipality make available alternative emergency accommodation or land
on or before 31 January 2011.
21] The applicant in terms of paragraph 39 of the judgment by Murphy J,
abandoned its claim for R991 666,00 monthly rental and instead sought an
order that should the Municipality fail to provide alternative accommodation
and land on a specified date, it be entitle d to compensation calculated in
terms of Section 12(1) of the Expropriation Act, No. 63 of 1975 (“the
Expropriation Act”), as if the right to use had been obtained in terms of this
Act.
22] It is common cause between the parties, that Murphy J, in his
judgment, postponed the prayer for compensation sine die for oral evidence
as follows:
“The Applicant’s prayer for compensation in Paragraph 4 in Part B of
this Notice of Motion is postponed sine die. The application for
payment of and the quantification of such compensation shall be
referred to and decided by oral evidence on such date in accordance
with any directions regarding pleadings, discovery, inspection and
other matters of procedure as determined by the Deputy Judge
President or any other Judge designated by him.”
23] Thereafter on 4 December 2019, the parties indeed held a pre -trial
conference before Acting Deputy Judge President Potterill, who gave
directives regarding the conduct of the matter going forward.15
15 Annexure B3, Caselines D47.
24] In terms of the directive so issued, the applicant was required to file a
declaration by 31 January 2020.
25] However, the applicant delivered its declaration on 7 February 2020, in
terms which it claimed against the Municipality compensation in respect of
unlawful occupation of its property in the amount of R36 026 003 and
constitutional damages in the amount of R140 500 000.00.
26] The applicant relies on the alleged failure by the Municipality to comply
with the order of Murphy J, to contend that it suffered constitutional
damages. The applicant goes further and seeks to claim: -
26.1 In Claim 1, the compensation in respect of unlawful occupation
of its properties calculated at a rate of 7% per annum as if it had
invested the amount of R169 million, being the value of the properties
at a commercial bank. In doing so, it sought an amo unt of R36 026
003,00 for the period January 2010 to 11 February 2013. The period
of January 2010, is the period upon which the Applicant alleged in
the eviction application that the unlawful occupiers occupied its
property, whereas the period of 11 February
2013, is the period which it alleges the properties were sold due to a
compromise.
26.2 In Claim 2, the applicant seeks an order for constitutional
damages being the difference between the value of the properties
and the amount that the properties were sold for in terms of a
compromise.
27] In respect of Claim 2, the Municipality contends that it is a new claim,
which has prescribed. The Municipality further contends that it is akin to a
claim for a loss of profit which is not recognized in our law where there are
no allegations of fraud, corruption or mala fides.
28] The Municipality raised a special plea in respect of the above claims
contending that the applicant’s claim insofar as it relates to payment of
compensation from the date of unlawful invasion /occupation, it is a new
claim which has prescribed . Also, that the claim for payment of
constitutional damages has also prescribed insofar as it was not originally
sought when the eviction application was instituted.
29] The applicant then brought this condonation application, supposedly,
ex abundante cautela, as a result of the above special plea raised by the
Municipality.
30] The applicant filed a replication on 23 April 2020 , therein contending
that the claim for constitutional damages is not de novo proceedings as it
emanates from existing proceedings which were postponed sine die (“the
eviction application”). The applicant also asserted that constitutional
damages is not a debt. These are the issues before this Court.
31] The first question , therefore, is whether constitutional damages is
“compensation” as originally sou ght by the applicant in its eviction
application?
32] In this respect the argument advanced by the applicant was that the
applicant’s claim for compensation is dealt with in para (xii) of the judgment
by Murphy J which reads as follows:
“(xii) The applicant’s prayer for compensation in paragraph 4 of Part
B of the notice of motion is postponed sine die. The application for
the payment of and the quantification of such compensation shall be
referred to and decided by oral evidence on such date a nd in
accordance with any directions regarding pleadings, discovery
inspection and other matters of procedure as determined by the
Deputy Judge President or any other judge designated by him.”16
33] In order to establish what the content of the Applicant’s claim was when
the matter was heard by Murphy J, the judgement and order should be
properly interpreted, applying the normal principles of interpretation of a
court order.
16 Caselines D73.
34] In terms of the normal principles the judgement and the court order
should be read together, in order to properly interpret same and ascertain
its intention and its purpose.
35] In Firestone South Africa (Pty) Ltd v Centicuro AG [1977] 4 ALL SA 600
(A) the Appellate Division stated as follows:
“The basic principles applicable to construing documents also apply
to the construction of a court’s judgment or order: the court’s
intention is to be ascertained primarily from the language of the
judgment or order as construed according to the usual, wel l-known
rules.”
“Thus, as in the case of a document, the judgment or order and the
court’s reasons for giving it must be read as a whole in order to
ascertain its intention.” 17
36] In Natal Joint Municipal Pension Fund v Endumeni Municipality 2102 (4)
SA 593 (SCA) the SCA once again described the process of interpreting as
involving a unitary exercise of considering language, context and purpose.
Interpretation is an objective exercise where, in the face of ambiguity, a
17 Firestone South Africa (Pty) Ltd v Centicuro AG [1977] 4 ALL SA 600 (A) Par [h
] page 604. Also followed in Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy
Coal South Africa Limited and others [2012] JOL 29082 (SAC) para [13]; Martrade
Shipping and Transport GmbH v United Enterprises Corporation and other [2020]
ZASCA 120 at para [3]
sensible meaning is to be preferred to one which undermines the purpose
of the document or order.18
37] On this basis counsel for the applicant had argued that as it was
common cause, and it also appears clearly from the judgment, that at the
time when the matter was heard, the applicant:
37.1 Abandoned the initial reliance on constitutional compensation,
based on rental, by orally at the time of hearing the application
requesting amended relief, in the form of a draft order which was
handed up to the Court and not opposed at the time by the
Respondent;
37.2 Relied on the principles of the President of the Republic of South
Africa and Another v Modderklip Boerdery (Pty) Ltd 2005(5) SA3 (CC)
(“Modderklip Boerdery”) in support for a claim for constitutional
compensation, in the event that the City failed to provide emergency
alternative accommodation or land, last -mentioned being a
mandatory order also covered by the same draft order;
37.3 The constitutional compensation which was sought in terms of
the draft order, for the breach of the mandatory order to provide
18 Natal Joint Municipal Pension Fund v Endumeni Municipality 2102 (4) SA 593
(SCA) at para [18].
alternative emergency accommodation or land, was at that stage
requested in terms of Section 12 (1) of the Expropriation Act, 63 of
1975, similarly, as was done in Modderklip Boerdery.
38] It is on this basis that counsel had argued that the applicant’s claim for
compensation against the respondents is therefore not de novo proceedings
but a referral to oral evidence for the “payment of and quantification” of
the applicant’s claim for compensation against the respondent in respect of
an existing application which was postponed sine die.
39] The Constitutional Court in Modderklip Boerdery stated the following:
“I agree with the observation of the Supreme Court of Appeal that:
“If a constitutional breach is established, this Court is (as was the
Court below) mandated to grant appropriate relief. A claimant in such
circumstances should not necessarily be bound to the formulation of
the relief originally sought or the manner in w hich it was presented
or argued.”19
19 Id at para 18. The Court referred to Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies intervening) 2001 (4) SA 938 (CC);
2001 (10) BCLR 995 (CC); and Bannatyne v Bannatyne (Commission for Gender
Equality, as amicus curiae) 2003 (2) SA 363 (CC); .2003 (2) BCLR 111 (CC) in
support of this approach.
40] Thus, in appropriate circumstances a Court can invent an “appropriate
remedy” for the breach of a Constitutional right and is not bound to what
relief the applicant has sought in its notice of motion.
41] The above proposition was repeated in the matter of Steven Ngomane
& Others v The City of Johannesburg Metropolitan Municipality & others,
[2108] ZASCA 57 where the SCA as per Maya JA held as follows:
“Although the applicants sought only the return of their property, it
bears mention that a claimant in respect of a constitutional breach
that has been established is not necessarily bound to the formulation
of the relief originally sought or the manner in which it was presented
or argued. Thus, it matters not that the applicants sought to vindicate
their constitutional rights for the first time in this Court.20
42] In the present matter, Murphy J, decided not to dismiss the claim for
constitutional compensation, as amended in open court (without objection)
in terms of the draft order handed up, which draft order , Murphy J duly
considered, and decided that:
“The appropriate time for determining any entitlement to
compensation or damages is where any such violation or breach
actually materialises. The city has not effectively expropriated the
20 Steven Ngomane & Others v City of Johannesburg Metropol itan Municipality,
[2108] ZASCA.57 par [23]
applicant. At most it is perhaps in breach of its duties to access
provincial government funding and to facilitate a solution. It may be
that it’s persistent failure to act will concretise into a creeping
expropriation of the applicant’s rights to use. But I do not accept, and
nor is there evidence sufficient for that purpose, that its present
contact can be equated with expropriation. Should it fail to comply
with the directives and orders are proposed to issue, its conduct,
justifications and explanations associated with such failure, should it
occur, must be assessed ex post facto to determine whether a
creeping expropriation has indeed occurred. “
43] Murphy J, concluded with regards to the Applicant’s reliance on the
Modderklip Boerdery case, that:
“We are not at that stage in the present matter” and “an order
declaring any entitlement to compensation contingent on future
possible failures or duty or violation of constitutional rights, in my
opinion would be premature.”
44] Murphy J therefore decided not to dismiss the prayer for constitutional
compensation, based on the draft order received and acknowledged that:
“The Application for payment of a quantification of such compensation
shall be referred to a decided by oral evidence on such date and in
accordance with any directions regarding pleadings, discoveries,
inspection and other matters of procedure as determined by the
Deputy Judge Pres or any other judge designated by him".
45] The relief for constitutional compensation counsel therefore argued was
not dismissed, but was pending and referred for oral evidence, subject to a
rider that the Deputy Judge President would issue directions relating to the
way forward.
46] On this basis counsel for the applicant submitted that there is, as a
result, no doubt whatsoever that the constitutional compensation claim
based on a breach of a constitutional right or duty, was pending since the
judgement and order issued by Murphy J, and failing any appeal by the
City, it is bound by such judgement and order.
47] In opposition, however, the Municipality contends that constitutional
damages were not originally sought by the applicant in the original eviction
application.21 In the initial eviction application brought by the applicant, it
pleaded:
47.1 That the current occupation of the properties by the unlawful
occupiers resulted in the land being useless for the applicant.22
21 Para 23 to 30, caselines D163 to D166.
22 Para 45, caselines C59: Founding affidavit in the eviction application.
47.2 That “I am advised that the applicant has a constitutional claim
for rental against the Third Respondent, for the duration of the
unlawful occupation of the said properties endure”.23
47.3 That “If the Applicant would rather invest the current market
value of the properties, within a banking institution it would have
received a risk-free monthly interest of 7 % per annum, which would
have amounted to a yearly yield of R11 899 992,00, which calculated
on a monthly basis amount to R991 666,00 per month”.24
47.4 That “There is no conceivable reasons why the Applicant should
not be compensated for the period of the unlawful occupation, until
the unlawful occupiers are evicted alternatively alternate land be
provided for them alternatively the land be expropriate d in terms of
the normal procedures”.25
47.5 That it was on the above basis that the applicant sought a
declaratory order that it was “entitled to be compensated by the Third
Respondent for the period of the unlawful occupation, commencing
from the date”26 of the eviction application.
23 Para 46, caselines C59: Founding affidavit in the eviction application.
24 Para 49, caselines C60: Founding affidavit in the eviction application.
25 Para 50, caselines C61: Founding affidavit in the eviction application.
26 Para 51, caselines C61.
48] This Court agrees that the order of Murphy J postponed the applicants
claim for compensation sine die. This claim for compensation was sought
in addition to the main relief in the form of eviction, alternatively
occupational rental, which is different to constitutional damages.
49] As previously mentioned however the applicant moved for an
amendment in terms of the draft handed up, which amendment was not
opposed by the respondent and it is this amendment that introduced the
claim for constitutional damages claimed by the applicant, which Murphy J
ultimately elected to postpone.
50] Murphy J in his judgment made it clear that there was a distinction
between compensation and constitutional damages. At paragraph 40 he
said the following:
“40. Compensation could be payable in a case such as this when a
relevant organ of state through its conduct or omissions in effect
expropriates or arbitrarily deprives a party of its property. It is also
conceivable that an applicant could be awarded cons titutional or
delictual damages for proven constitutional violations or breaches of
statutory duty. However, I am not persuaded that the applicant has
adduced sufficient evidence of any such violation or has laid a proper
basis for a declarator that it be entitled to compensation for the
contingency of the City not providing emergency accommodation or
land. The appropriate time for determining any entitlement to
compensation or damages is when any such violation or breach
actually materialises………”
51] Section 38 of the Constitution, 1996 provides that anyone listed therein
whose rights have been infringed or threatened may approach the Court
and the Court may grant appropriate relief, including a declaration of rights.
52] Apparent from past caselaw in respect of constitutional damages the
following principles have crystalized over the years:
52.1 Our C ourts have clarified that for constitutional damages to be
awarded, a determination of the remedies available to a litigant must be
made in order to evaluate whether those remedies are appropriate. This is
a strong indication that a claim for constitutional damages is a separate
claim that must be pleaded as such;
52.2 In Fose v Minister of Safety and Security 27 albeit in relation to our
interim Constitution, the Constitutional Court held that:-
“Appropriate relief will in essence be relief that is required to protect
and enforce the Constitution. Depending on the circumstances of
each particular case , the relief may be a declaration of rights, an
27 [1997] ZACC 6 at Par. 19.
interdict, a mandamus or such other relief as may be required to
ensure that the rights enshrined in the Constitution are protected and
enforced. If it is necessary to do so, the courts may even have to
fashion new remedies to secure the protection and en forcement of
these all important rights.”
52.3 The Court above stressed in paragraph 20 that it was dealing with a
narrow issue and not whether constitutional damages exist in law and
whether payment for damages in that regard qualifies as appropriate relief.
The Constitutional Court only confined itself to the questions in rela tion to
the infringement of rights as alleged and a separate claim for constitutional
damages.
52.4 The Court thus recognised that the relief of constitutional damages
would be distinct from the relief as dealt with at paragraph [19] of the
judgment. The Court ultimately found at paragraph [61] that:-
“[60] Notwithstanding these differences it seems to me that there
is no reason in principle why “appropriate relief” should not include
an award of damages, where such an award is necessary to protect
and enforce Chapter 3 rights. Such awards are made to compensate
persons who have suffered loss as a result of the breach of a statutory
right if, on a proper construction of the statute in question, it was the
Legislature’s intention that such damages should be payable, and it
would be strange if damages could not be claimed for, at least, loss
occasioned by the breach of a right vested in the claimant by the
Supreme law. When it would be appropriate to do so, and what the
measure of damages should be, will depend on the circumstances of
each case and the particular right which has been infringed”.
52.5 In the above matter therefore the Constitutional Court dealt with the
matter by accepting that there was a difference between a claim based on
delict [i.e., the assault and detention] and one based on constitutional
damages [i.e., a claim based on the infringement of constitutional rights].28
52.6 Past caselaw further indicate that in all cases where constitutional
damages were dealt with, they were sought ancillary to a remedy in delict,
common law or otherwise. But the violation of a constitutional right had to
be pleaded and so too the relief had to be pleaded.
53] The violation of a constitutional right and the relief for constitutional
damages indeed was pleaded when Murphy J granted the amendment to
the applicant. In President of the Republic of South Africa and Another v
Modderklip Boerdery, 29 mentioned above, Modderklip asked for a
declaration that the State had breached their section 25(1) and its equality
rights under section 9(1) and (2) of the Constitution as well as the unlawful
28 See paragraph 14.
29 (Pty) Ltd (CCT20/04) [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786
(CC) (13 May 2005).
occupiers’ rights to access to adequate housing [section 26]. 30 In this
matter the Court a quo granted the relief regarding the State’s breach of
rights as explained above.31 The Supreme Court of Appeal upheld the Court
a quo’s order.32 The Constitutional Court however declined to answer the
question as to whether the rights of the unlawful occupiers and Modderklip
had been breached. It dealt with the issue in a different way by finding that
the State’s failure to assist Modderklip regarding the eviction of the unlawful
occupiers breached Modderklip’s section 34 right to an effective remedy.33
This was because Modderklip had an eviction order it could not execute due
to the sheer number of unlawful occupiers on its property and the refusal
of the State to assist it with the eviction.
54] Herein, in terms of the eviction order granted by Murphy J, the City was
supposed to provide alternative accommodation by 31 January 2011 for the
eviction to take place and this the City has failed to do.
55] The City, being bound to the judgement and order, is not free to defy
the content thereof, and all the parties are bound to it.
56] An organ of state further has a duty to respect and give effect to a
judgement or court order, even if it silently does not agree with . I f the
30 Modderklip at para 11.
31 Modderklip at para 15.
32 Modderklip at paras 18 and 19.
33 Modderklip at para 51.
content is defied or ignored, it will be viewed as a contemptuous
behaviour.34
57] It would therefore seem to me, properly interpreted and with reference
to Modderklip Boerdery, that the applicant’s claims at all material times has
been for compensation based upon the infringement of the applicant’s
fundamental right of ownership as entrenched in s 25(1) and s 25(3).35
58] For the above reasons this Court concludes that the applicant’s claim
for constitutional damages is not new or subject to the provisions of the
Institution of Legal Proceedings Against Certain Organs of State Act 36, Act
40 of 2000 and it is for this reason that there was no duty on the applicant
to comply with the provisions of Section 3(1) & (2) of the Act.
59] The second question to then be answered is whether the applicant’s
claim for constitutional damages is a “debt” as envisaged by the
Prescription Act or section 3(1) and 3(2) of the Institution of Legal
Proceedings Against Certain Organs of States Act and whether such debt
has prescribed.
34 Municipal Manager OR Tambo District Municipality and another v Ndabeni
[2022] 5 BLLR (CC) par [24].
35 Section 25(1) – Constitution of the Republic of South Africa: “No one may be
deprived of property except in terms of law of general application, and no law may
permit arbitrary deprivation of property.
36 Act 40 of 2002.
60] The Institution of Legal Proceedings Against Certain Organs of State
Act was enacted to provide uniformity in both periods of limitation and
procedure of enforcement against Organs of State due to the plethora of
statutory provisions, which previously dealt with prescription. This Act
regulates all claims against Organs of State arising from an act performed
or omission of any duty in law or any duty in terms of any law.
61] In respect of the above question, the applicant had argued that the
referral to oral evidence by Murphy J of specified issues being “the payment
and quantification of such compensation” is a continuation of an existing
application and does not constitute de novo proceedings.
62] In support of this argument, the applicant relied on the decision of
Greyling v George Randall High School [2023] 5 BLLR 412 (LC) where the
court held as follows:
“If oral evidence is allowed under rule 6(5)(g) the proceedings remain
motion proceedings and do not become a rauw actie.”37,38
37 Para 35 – Greyling v George Randell High School [2023] 5 BLLR 412 (LC).
38 In Taylor v Hollard Aug 31 - Sept 4 1885 “rau actie” according to Van Der Linde
(Jud. Pract. 2-6, & 2) means “Whenever a case comes before the Court in the first
instance”; and according to Wassenaar’s Jud. Pract., rau-actie means an action in
the first instance, and not by appeal or reformation.”
63] Further, i n Macsteel Tube and Pipe, a Division of Macsteel Service
Centres SA (Pty) Ltd v Vowles Properties (Pty) Ltd [2021] JOL 52604 (SCA)
the SCA stated as follows:
“A plaintiff is not precluded from augmenting its claim for damages if
the new claim merely represents a fresh quantification of the original
claim.”39
64] On this basis, counsel had argued that the referral to oral evidence of
the payment and quantification of the applicant’s claim is merely a
continuation of existing proceedings under the application with case
number 33786/2010 and do not constitute de novo proceedings and as
such the a pplicant’s claim for constitutional damages is not a “debt” and
subject to the provisions of the Act.40
65] In addition , counsel submitted that the a pplicant’s claim for
constitutional damages against the respondent is also not a claim for
damages in the context of delict and in this regard it relied on the decision
of Director-General, Department of Public Works v Kovac Investments 289
(Pty) Ltd, [2011] JOL 26645 (GNP)41 where the court held that the plaintiffs
claim against the defendant was not for damages and was thus not a "debt"
39 Macsteel Tube and Pipe, a Division of Macsteel Service Centres SA (Pty) Ltd v
Vowles Properties (Pty) Ltd [2021] JOL 52604 (SCA) – par [16].
40 Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002.
41 Director-General, Department of Public Works v Kovac Investments 289 (Pty)
Ltd, [2011] JOL 26645 (GNP) par[ 7, 8,9,10 & 12].
as defined in the Act . Accordingly, the provisions of section 3 of the Act 42
did not apply to the plaintiff's claim.
66] The Institution of Legal Proceedings Against Certain Organs of State
Act defines a debt as: -
“Any debt arising from any cause of action –
(a) Which arising 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;
(ii) Omission to do anything which should have been done in terms
of any law;
(b) for which an Organ of State is liable for payment of damages,
which such debt became due before or after the fixed date.”
67] Further, the Act states that:
“3. Notice of intended legal proceedings to be given to organ of state
-
42 Institution of Legal Proceedings Against Certain Organs of State Act, Act 40 of
2002.
(1) No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless—
(a) The creditor has given the organ of state in question notice in
writing of his or her or its intention to institute the legal proceedings
in question; or
(b) The organ of state in question has consented in writing to the
institution of that legal proceedings—
(i) Without such notice; or
(ii) Upon receipt of a notice which does not comply with all the
requirements set out in subsection (2).
(2) 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 acquired
it by exercising reasonable care, unless the organ of state wilfully
prevented him or her or it from acquiring such knowledge; and
(b) A debt referred to in section 2 (2) (a), must be regarded as having
become due on the fixed date.
(4)(a) If an organ of state relies on a creditor’s failure to serve a
notice in terms of subsection (2) (a), the creditor may apply to a
court having jurisdiction for condonation of such failure.
(c) 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.”
68] In terms of Sections 11(d) of the Prescription Act, debts not specified
in Sections 11 (a) to 11(c) prescribe after three (3) years have elapsed.
69] On behalf of the respondent the argument advance d was that the
applicants’ constitutional damages is a debt as prescribed above and thus
subject to the Act. In support of this argument counsel relied on the
decision of Makate v Vodacom ,43 where the definition of debt was
considered. The Constitutional Court dealt with the definition of a debt in
the determination of whether a claim had prescribed or not. The Court
confirmed the definition of a debt as ascribed by the Supreme Court of
Appeal in Electricity Supply Commission v Stewards and Llyods of SA (Pty)
Ltd44 in that a debt is:-
“1. Something owed or due: something (as money, goods or service)
which one person is under an obligation to pay or render to another.
43 (Pty)Ltd [2016] ZACC 13.
44 1981 (3)SA 340 (A).
2. A liability or obligation to pay or render something; the condition
of being so obligated.”
70] This stance adopted by the respondent is supported as the applicant
contends, its cause of action arose out of the failure by the City to provide
alternative accommodation.
71] I do not agree with the argument advanced by the respondent in this
regard. Herein the referral to oral evidence for the payment and
quantification of such compensation does not constitute de novo
proceedings but properly construed is merely an augmentation of the
applicants claim already pleaded before the court. For this reason , this
Court concludes that this claim is not a “debt” as defined in the Act and has
therefore not prescribed.
72] The applicant notwithstanding the above, nevertheless applies for
condonation ex abudante cautela for such late filing of the notice this
notwithstanding the fact that the applicant is not a creditor, as referred to
in s 3 of the Act. This is so as the applicant contends, it will not have a
claim for any constitutional compensation/damages, prior to the court
exercising its discretion, at remedy stage and awarding constitutional
compensation. Even if the applicant succeeds in proving a constitutional
breach, constitutional compensation does not follow automatically as of
right, as in the instance of a delict.
73] In order to succeed with condonation an applicant must show good
cause for any extension or abridging of time and any absence of prejudice
to the opposing party in order for a court to exercise its discret ion in its
favour.
74] On “good cause” our courts have held entails consideration of all factors
which have a bearing on the fairness of granting the relief affecting the
proper administration of justice. 45These factors include prospects of
success in the action, the reasons for the delay, the sufficiency of the
explanation offered, the bona fides of the applicant, and any other
contribution by other persons or parties to the delay and the applicant’s
responsibility therefor.46
75] The standard of proof in the context of good cause is not one on a
balance of probabilities but rather the “overall impression made on the
court which brings a fair mind to the facts set up by the parties.”47
76] In this regard, the applicant had argued that the City raised the defence
of non-compliance with the Act for the first time only in its second special
plea on the 16 March 2020 . However, the City was already aware of the
constitutional claim, since the urgent application which was lodged on the
45 Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA) at para 8.
46 Madinda - para 10.
47 Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA) at para 8.
10 June 2010. The City was furthermore acutely aware of the order granted
by Murphy J, dated 30 September 2010, to which it had to give effect to
but it failed to do.
77] As the order by Murphy J was given during the Covid 19 pandemic, the
applicant thereafter could not react effectively and only send out a letter in
terms of the Act to the City on the 6 November 2020 given the lockdown
restriction applicable at the time . The lapsing of time is fully explained in
the founding affidavit and inter alia refers to what occurred during the Covid
19 lockdown.48
78] This court is satisfied that good cause has sufficiently been explained
justifying condonation to be granted to the applicant.
79] In addition t o showing good cause, an applicant must also show
absence of prejudice to his opposing party for a court to exercise its judicial
discretion in its favour.
80] In this regard the applicant had submitted that there can be no
conceivable prejudice for the City , as t echnically speaking, it already
received notice of the claim when the urgent application was lodged.
48 Founding Affidavit D28 para 63 and 64.
81] It did not at that stage, take the point that there was non -compliance
with the Act, although the affidavits constituted pleadings and it was only
10 years later, that it opportunistically decided to rely in the first special
plea of non-compliance with the Act.
82] The respondent being a party to the eviction application and in
possession of all documents and papers relevant to the eviction application
has been in possession of these documents since 2010. In addition, the full
record of the eviction application has been uploaded onto the electronic
casefile of the matter, and the respondent has been invited onto the matter
and has access thereto.
83] The nub of the dispute between the parties as mentioned, is the
respondent’s failure to comply with the court order granted by Murphy J
dated 30 September 2010 . The respondent has been aware of the
obligations imposed upon it by the court order since 2010 which is further
evidenced by its reply to the applicant’s Rule 35(3) Notice, wherein in
response, the respondent filed on 4 February 2021 an affidavit deposed to
by Metse Olivia Mabeba, a Director Human Settlement Policy and Planning
at the City of Tshwane Metropolitan Municipality who admitted that the
respondent does not have the requested documents and never submi tted
an application for assistance with the provincial government to provide
emergency alternative accommodation as ordered by the court order dated
30 September 2010.
84] In the answering affidavit on the issue of prejudice , the deponent
merely asserts that it will suffer prejudice if condonation was to be granted
by the court without expanding what that prejudice will entail given the
litigation history that has occurred. Absence such explanation, this Court
accepts that no prejudice exists to the respondent, if condonation is to be
granted.
85] In the result the following order is made:
85.1 It is ordered that the applicant’s claim is not subject to the provisions
of section 3 of the Institution of Legal Proceedings Against Certain Organs
of State Act, Act 40 of 2002 (the “Act”).
85.2 Insofar as the applicant’s claim might be subject to the provisions of
section 3 of the Institution of Legal Proceedings Against Certain Organs of
State Act, Act 40 of 2002, condonation is hereby granted in terms of section
3(4) of the Act;
85.3 Costs, including the costs of counsel on scale C.
APPEARANCES
Counsel for the Applicant:
Instructed by:
C/0:
Counsel for the Respondent:
Instructed by:
Dates of Hearing:
Date of Judgment:
CJ COLLIS J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
Adv. T Strydom SC
Henn ie Kotze Attorneys
DVJ Inc
Adv. J A Motepe SC
Adv. M S Manganye
Kunene-Rampala Inc.
14 November 2024
04 November 2025