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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MAKHANDA]
APPEAL CASE NO.45/2025
High Court Case No. 3615/2023
In the matter between:
ENOUCH MGIJIMA LOCAL MUNICIPALITY Appellant
and
Z[...] F[...] obo Y[...] A[...] F[...] Respondent
and
High Court Case No: 3616/2023
In the matter between:
ENOCH MGIJIMA LOCAL MUNICIPALITY Appellant
and
MXOLISI QUITON MASAYIMANI Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
Introduction.
[1] The respondents instituted separate action proceedings claiming delictual
damages r esulting from two separate incidents in which there were electrocutions
and for which they held the appellant liable. The appellant raised two special pleas,
prescription and non -compliance with section 3 of the Institution of Legal
Proceedings Against Certain Organs of State Act (the Institution Act) 1. This appeal,
which is with the leave of the Supreme Court of Appeal, concerns the granting of the
condonation applications by the court a quo. To accommodate the marginal
differences in the factual matrix and to avoid confusion, I shall henceforth refer to the
respondents simply as Ms F[...] and Mr Masayimani.
Factual background.
[2] On 17 February 2020 Y[...] F[...] (the minor child) who was three years old at the
time made contact with live electri c cables resulting in his electrocution. At the time
of the incident the minor child was playing with other children at his residential area
known as Aloe T Square Camp, an informal settlement in Komani (formerly
Queenstown). Ms F[...], the mother and natural guardian of the minor child instituted
1 40 of 2002.
damages claims both, in her personal capacity and in her representative capacity on
behalf of the minor child.
[3] The live electric cables were illegally connected to the appellant’s substation at
Saleni Street, T Section, KwaMlungisi Township in Komani, an area that is provided
with electricity and electricity infrastructure by the appellant. The minor child
sustained bodily injuries as a result of which he was rushed to Park Valley Clinic,
Komani where he was treated and later transferred to Frontier Hospital, Komani. He
was admitted and treated for about a week. The injuries sustained included
disfigurement in his left hand as a result of which he was operated on at Livingstone
Hospital in Gqeberha. He therea fter attended physiotherapy sessions at Frontier
Hospital.
[4] The incident was reported to Mr Gaju who was the area’s erstwhile ward
councillor. It was also reported to the South African Police Service in Komani. In
May 2020 detective sergeant Baninzi to ok a statement from the minor child’s
grandmother who, at the time of the incident, was looking after the minor child. It is
unclear when the incident was reported to the police relative to when it occurred.
[5] It does not appear that beyond what is allud ed to above, anything else was done
consequent to the incident until June 2023. In her founding affidavit there is some
reference to the covid 19 declaration of the national state of disaster in the country
by the President which Ms F[...] said was finally lifted with effect from 5 April 2022. It
is unclear from the papers what point was being made about the declaration of the
national state of disaster as there is no indication of what she would have done but
for the declaration of the national state of dis aster. On 24 June 2023 the minor
child’s grandmother learnt from other members of the community that Mr
Masayimani, who had also been electrocuted in the same area a few days after the
electrocution of the minor child, was receiving legal assistance from a certain
attorney.
[6] On 25 June 2023 Ms F[...] and the minor child’s grandmother consulted with and
gave instruction to the said attorney. Their attorney advised them that they would
first investigate the circumstances which led to the minor child’s elect rocution. They
would also need to obtain hospital records and interview witnesses before deciding
whether a claim for delictual damages could be instituted against the appellant. Until
their interaction with their attorneys of record in June 2023, they did not consult any
other attorney about a possible civil claim. She did not know that she had a claim or
that she had a right to institute damages claims consequent upon the minor child’s
electrocution. She also did not know the identity of the respondent, qua debtor.
[7] She is a lay person and was under the impression that police to whom the
incident had been reported would investigate the matter and take it to court on her
behalf. She did not know the difference between a criminal case and a civil claim. I n
July 2023 copies of the medical hospital records were sought but were not
immediately obtained as the hospital failed to provide them. A decision was then
taken on 4 October 2023 to proceed with legal action without those records having
been obtained. Consequently, on 6 October 2023 a statutory notice in terms of
section 3 of the Institution Act was served on the appellant followed by a summons
which was issued and served on 10 October 2023 without the hospital records
having been obtained. The hospita l records were only provided by the hospital on 9
November 2023. The appellant defended the matter and raised a special plea to the
effect that Ms F[...] had not complied with section 3(2) of the Institution Act in that the
statutory notice was non-compliant for lack of timeous service.
[8] This is more or less the backdrop against which Ms F[...] instituted this application
seeking condonation for her failure to serve the notice within six months from the
date of the cause of action as provided for in sectio n 3(2) of the Institution Act. She
contended that the debt has not been extinguished by prescription, that good cause
existed for her failure to timeously give the statutory notice soon after the date of the
cause of action and in any event, within six mon ths. Finally, she contended that the
appellant would not be prejudiced by such failure to serve the appellant timeously
with the said notice.
[9] With regard to the existence of good cause, Ms F[...] contended that there was a
good cause for her failure. It was that she is a lay person with no knowledge of the
requirements of civil litigation and in particular, the stipulations contained in the
Institution Act regarding the service of the notice. She did not know that she had a
potential claim against the appellant, qua debtor, or the specific organ of state
against which any potential claim might lie. She also did not have the full facts on
which to establish the existence of the debt. On those bases, the six months period
prescribed in section 3(2)(a) of the Institution Act could only start running from the 4
October 2023, the date on which she obtained legal advice from her attorneys
following the investigations they conducted. It was only at this point that she obtained
knowledge that the minor child’s e lectrocution was caused by the negligence of the
appellant’s employees who failed to remove the electric cables that were illegally
connected to the appellant’s infrastructure.
[10] In those circumstances the statutory notice was served timeously in compli ance
with the Institution Act without any delay and within the required six months period
from the time she became aware that she had a claim against which organ of state.
from the time she became aware that she had a claim against which organ of state.
She contended that the merits of her claim are good in that she has witnesses in th e
form of the members of the public who had lodged complaints with the appellant
about the illegal connections before the minor child was electrocuted. Those
witnesses could testify that the appellant’s employees, despite knowing about the
existence of the illegal connections, failed to remove them thus failing to protect the
minor child and other members of the public from electrocution. There were also
witnesses who witnessed the electrocution of the minor child and the expert medical
personnel who treated him as well as the minor child’s medical records.
[11] Ms F[...] further contended that it was clear from the appellant’s plea that it has
no genuine defence to the merits of the claim. It admits the duty of care to ensure
the safety of the members of the public including the minor child but does not explain
its failure to remove the illegal connections. In all the circumstances, she has good
prospects of success in respect of both, her claim in her personal capacity and her
claim in her representative capacity on behalf of the minor child. The illegal
connections were still there, and unsuspecting members of the community were
therefore still being exposed to the risk of electrocution which was a gross dereliction
of duty on the part of the appellant. The appellant would not be prejudiced by the
granting of the condonation application. What was required was, in any event, not
absence of prejudice but absence of unreasonable prejudice which did not exist.
[12] Finally, Ms F[...] contended that the claim has not prescribed in that a debt is not
deemed as being due until the creditor has knowledge of the identity of the debtor
and the facts giving rise to the debt. Furthermore, she could not have acquired the
knowledge of the facts giving rise to the debt or the identity of the appellant as the
debtor even by exercise of reasonable care. The debt only became due on 4
October 2023 when she acquired knowledge of the facts giving rise to the debt and
October 2023 when she acquired knowledge of the facts giving rise to the debt and
the identity of the debtor from her attorney during consultati on. Therefore, before the
4 October 2023 the debt had not yet become due within the contemplation of the
section 3(2)(a) of the Institution Act read with section 12(3) of the Prescription Act 2.
The debt arose on 4 October 2023, and the statutory notice wa s served on the
appellant as required in terms of section 3(1) of the Institution Act and without delay.
Finally, the claim in respect of the minor child has not prescribed as the child is still a
minor and her personal claim was, by its very nature, an ongoing claim.
[13] Mr Masayimani was born on 1 December 1983, is unemployed and resides at
Aloe T Squatter Camp in Komani. His highest level of education is grade 11. He
instituted action proceedings claiming delictual damages arising from the negligent
and/or wrongful conduct of the appellant. This was based on appellant’s failure to
protect him and other members of the public by not removing illegal electricity
connections which constituted a hazard to people walking in the area. He held
appellant responsible for the r emoval of the illegal electricity connections to its
infrastructure. In his papers his case is more or less the following.
[14] On 19 February 2020 and at Aloe T Squatter Camp he was electrocuted when
he accidentally came into contact with live electric c ables while walking to a nearby
shop. The said electric cables were illegally connected to appellant’s infrastructure.
He sustained bodily injuries as a result of which he was rushed to Dr Ndamase’s
surgery who, after treating him, transferred him to Fron tier Hospital where he was
admitted and received further medical treatment for three weeks. He thereafter
attended numerous physiotherapy sessions at Frontier Hospital. The electrocution
incident resulted in his left arm becoming disabled.
2 68 of 1969.
[15] In May 2023 he met one Mxolisi Ngomane who also resided at Aloe T Squatter
Camp. During their conversation, Mr Ngomane wanted to know about his disabled
arm and he told him that it became disabled subsequent to an electrocution incident.
Mr Ngomane then suggested t hat he should contact his cousin, Mr Tyatyeka to
assist him in instituting a civil claim. Mr Ngomane told him that Mr Tyatyeka was
based in East London and assisted poor people in instituting civil claims for injuries
sustained in similar circumstances. D ue to lack of financial resources, he initially
hesitated approaching this attorney but at the beginning of June 2023 he contacted
Mr Tyatyeka and they arranged a consultation to take place on 24 June 2023. That
consultation took place during which he was advised that Mr Tyatyeka would obtain
copies of his hospital records and interview his witnesses before he would be in a
position to give him a clear indication on whether or not he had a claim against
appellant.
[16] His attorney received some of the hosp ital records on 29 September 2023 after
some delay since the formal request therefor was made on 25 July 2023. His
attorney felt that he still needed to do further investigations and he was required to
bring his witnesses to his attorney for further consu ltations. He and his witnesses
held a consultation with his attorney on 4 October 2023 in which, based on
information that was at his attorney’s disposal, he was advised that he had a claim
against appellant. He therefore gave his attorney a mandate to ins titute a civil claim
against appellant.
[17] On 5 October 2023 a notice in terms of section 3 of the Institution Act was
served on appellant and on 11 October 2023 appellant was served with a summons.
On 17 November 2023 his attorneys received a complete set of his hospital records
from Frontier Hospital. The civil action was defended and in its special plea,
appellant raised non -compliance with section 3(2) of the Institution Act alleging a
failure to serve a notice provided for in that section timeously and prescription. It was
this special plea the gave birth to his application for condonation.
[18] He explained that he is a lay person with no knowledge of the requirements set
out in the Institution Act. He had no knowledge that he had a potential claim against
any organ of state. He also did not have the information and the facts on which he
could have established whether in fact he did have such a claim or knowledge of the
specific organ of state against which his potential claim might lie. He contend ed that
the six months period referred to in section 3(2)(a) of the Institution Act could
therefore only start running from 4 October 2023, the date on which he obtained
legal advice from his attorney. It was at that stage that he acquired knowledge that
his electrocution was caused by the negligence of appellant’s employees in failing to
remove electric cables that were illegally connected to its infrastructure. When he did
obtain that knowledge, he thereupon served the notice in compliance with the
Institution Act without unnecessary delay and within the six months period. This was
the time at which he became aware of the existence of the debt and the identity of
the debtor.
[19] He contended that the merits of his claim were good as he intended to call o ther
members of the public who had complained about illegal connections to appellant’s
employees even before his electrocution. He also intended calling members of the
public who would be able to testify that appellant’s employees knew about the illegal
connections before his electrocution but failed to take the necessary steps to protect
members of the public including himself. He also intended calling members of the
public who witnessed his electrocution as his witnesses. He also intended calling the
medical practitioners who treated him and he would also use his hospital records to
prove his case.
[20] In any event, appellant relied on technical defences and has no genuine defence
on the merits. Based on all the evidence that he would be able to present , he
contended that he has a good prospect of success in his claim against appellant.
With regard to unreasonable prejudice, his contentions were that there were still
illegal connections at Aloe T Squatter Camp which were still connected to appellant’s
infrastructure which is situated at KwaMlungisi Township in Komani. Therefore,
innocent members of the public were still being exposed to the risk of electrocution.
Appellant would therefore not suffer any prejudice if condonation was granted and
any prejudice, if it may exist, would have resulted from appellant’s employees’ action
and would not in any event amount to unreasonable prejudice.
[21] He further contended that his debt was not due until he, as a creditor, had
knowledge of the identity of appellan t as debtor and the facts giving rise to the debt.
He could not have acquired knowledge of the existence of the debt even through the
exercise of reasonable care. The debt only became due on 4 October 2023 which
was when he acquired the facts giving rise t o the debt and the identity of appellant
as a debtor. Therefore, prescription only commenced running on 4 October 2023.
Before that date his debt against appellant had not yet become due as contemplated
in section 3(2)(a) of the Institution Act read with section 12(3) of the Prescription Act.
Appellant’s case.
[22] Appellant’s case to both Ms F[...]’s and Mr Masayimani’s condonation
applications was the following. On 17 and 19 February 2020, the dates on which the
minor child and Mr Masayimani were electro cuted, Ms F[...] and Mr Masayimani
were aware or ought reasonably to have been aware that the electrocutions were
caused by electrical wiring in the area of its jurisdiction. Therefore, they ought
reasonably to have known the identity of appellant as their debtor. They were aware
or ought reasonably to have been aware that appellant was responsible for electrical
supply to certain areas in Komani. On these bases the debt for damages sustained
in those electrocution incidents became due on 17 and 19 February 2020
respectively, which were the dates on which the two incidents occurred. Despite
knowledge aforesaid, they only served their notices on appellant in October 2023,
contrary to the provisions of the Institution Act which required them to serve their
notices within six months of the debts becoming due.
[23] In all the circumstances, the debts have prescribed as they both had all the
minimum facts that were necessary to institute their claims for damages. They were
aware or ought reasonably to have known o n the respective dates of incidents that
the electrocutions were caused by live electric cables connected to appellant’s
infrastructure, and that appellant had a duty to ensure the safety of the members of
the public which it failed to do and therefore bre ached its duty to ensure the safety of
the people of Aloe T Squatter Camp. Summons was served on 10 and 11 October
2023 respectively, and therefore the claims prescribed in February 2023.
[24] Appellant contended that Ms F[...] and Mr Masayimani failed to give
explanations for the entire period of the day. There was no explanation as to why
witnesses could not be consulted before October 2023. In any event, they had the
minimum facts that were required to sustain a cause of action. Waiting for hospital
medical records was unnecessary and in any event they proceeded with their claims
without obtaining them. There had been an excessive delay of about three years and
seven months reckoned from the dates of electrocutions. Their failure to fully explain
this excessive delay was fatal to their condonation applications.
[25] Appellant further contended that it was not responsible for illegal supply of
electricity and electrical cables to Aloe T Squatter Camp and there was no record of
it having been made aware of the illegal connections. Mr Masayimani should have
been aware of the risk involved in being in contact with illegally connected electric
cables in that area and should have guarded against coming into contact with them.
Appellant owed no duty of care arisi ng from illegal connections in that area as illegal
connections were not a municipal service to that community.
[26] Appellant further contended that prejudice to it was apparent after three years
and seven months of delay. Its employees who may have conducted inspections at
Aloe T Squatter Camp at that time may not have independent recollection of their
investigations and inspections in that area and some may not be still in its employ.
Even those who may still be available may have had faded memorie s of their
knowledge about illegal connections. This may affect the quality of adjudication by
the courts due to the passage of time. It has not been able to locate records of the
electrocutions and who attended to the incidents due to the passage of time all of
which prejudiced it. In all the circumstances, Ms F[...] and Mr Masayimani had not
met the requirements for them to be granted condonations and for the court to
exercise its discretion accordingly. The claims have prescribed and no good cause
for the delay has been shown by Ms F[...] and Mr Masayimani in circumstances in
which appellant has been palpably prejudiced by the failure to timeously give
notices.
The court a quo’s judgment.
[27] In granting the condonation applications the court a quo made t he following
observations and conclusions. Ms F[...] consulted an attorney as soon as could
reasonably be expected given her misconception, and her attorney in turn reacted
expeditiously. Mr Masayimani did so as well. It then went on to deal with the issue of
prejudice which it did rather fleetingly. In the process, it omitted to express itself on it
beyond what it said was both counsel accepting that a municipality is required to
keep records for a number of years. What that number of years is was not state d or
dealt with. After discussing and quoting some case law on prescription, it merely
pronounced itself as being satisfied that on their pleaded cases, both Ms F[...] and
Mr Masayimani gave adequate explanations for their delays in giving the notice
required in terms of section 3 of the Institution Act. It then concluded that the
respective periods of delays were not excessive without mentioning the period and
further concluded that the prejudice alleged by the municipality was not real. It then
repeated its earlier observation that a municipality was required to keep records of
electrocution incidents for a considerable period of time. However, it again refrained
from expressing itself on what that period of time was, relative to the delay for which
condonation was being sought.
[28] The court a quo’s ultimate conclusion was that appellant had failed to plead any
facts on the basis of which a conclusion that Ms F[...] and Mr Masayimani were
aware of their right to claim on the dates their individual causes of action arose. It
concluded that the overall impression applying a fair mind to the facts as set out in
the papers was that Ms F[...] and Mr Masayimani were unaware of their right to
claim. In this regard, it cited what it called inexperience and what it ca lled naïveté of
litigants from a previously disadvantaged background. It further said that both of
litigants from a previously disadvantaged background. It further said that both of
them fall into the category of disempowered and marginalized people given their
socio-economic status. It then concluded that Ms F[...]’s and Mr Masayimani’s right
to claim had not prescribed. It does need to be said that the court a quo’s
generalisation about Ms F[...] and Mr Masayimani as being naïve due to being from a
previously disadvantaged background was without any basis and therefore
unfortunate. The less said about that the better. This, in a nutshell, is the synopsis of
the court a quo’s reasoning for granting the condonation applications which, as will
become clear below, were to some extent, based on an unfortunate disregard or lack
of awareness abou t the legal position as consistently set out by the Constitutional
Court and possibly even to well -intended but misplaced pity for Ms F[...] and Mr
Masayimani.
The legal framework.
[29] At the back, centre and front of this application is the Institution Act which makes
provision for the Prescription Act to be an integral and indispensable part of the
equation in considering whether or not a court may exercise its discretion to not non -
suit an applicant for condonation. I quote the relevant parts of both pie ces of
legislation sequentially hereunder.
[30] Section 3 of the Institution Act reads:
“(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 proceeding[s] –
(i) without such notice; or
(ii) upon receipt of a notice whic h 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 maty not be regarded as being due until the creditor has knowledge
of the identity of the organ of state and of the facts given rise to the delt
but a creditor must be regarded as having acquired such knowledge as
soon as he or she or it could h ave 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.
(b) The court may grant an application referred to in paragraph ( a) if it is
satisfied that –
(i) the debt has not been extinguished by prescription;
(ii) good cause exists for the failure by the creditors; and
(iii) the organ of stated was not unreasonably prejudiced by the failure.
(c) If an application is grante d in terms of paragraph (b), the court may grant
leave to institute the legal proceedings in question, on such conditions
regarding notice to the organ of state as the court may deem appropriate.”
[31] The relevant parts of the Prescription Act for the pur poses of this matter are
contained in section 12 and read as follows:
“(1) Subject to the provisions of subsections (2) and (3) prescription shall commence to
run as soon as the debt is due.
(2) If the debtor wilfully prevents the creditor from coming to k now of the existence of
the debt prescription shall not commence to run until the creditor becomes aware of
the existence of the debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the
identity of the debtor and of the facts from which the debt arises: Provided that a
creditor shall be deemed to have such knowledge if he could have acquired it by
exercising reasonable care.”
Discussion.
[32] Section 3(3)(a) of the Institution Act appears to have been taken directly from
section 12(3) of the Prescription Act save that section 12(3) was crafted in
peremptory terms whereas section 3(3) appears to have been crafted in directory
terms. However, nothing really flows from those differences in the language
employed between the two pi eces of legislation. An observation may be made that
the permissive language employed in section 3(3) is indicative of the legislature’s
clear indication that a court considering a condonation application does have a
discretion to grant or refuse such an a pplication upon consideration of all the
jurisdictional requirements set out in section 3(4)(b). For a court to exercise its
discretion in favour of an applicant, it is trite that all three jurisdictional factors must
be shown to exist. In other words, i f an applicant for condonation fails to establish
the existence of the three requirements set out in section 3(4)(b) a condonation
application may not be granted. This is so because these jurisdictional factors are to
be considered conjunctively and not disjunctively.
[33] In essence and denuded of all excesses, appellant’s argument on appeal was
that the jurisdictional prerequisites for the granting of condonation were not
established. Therefore, the court a quo improperly exercised its discretion to gran t
condonation as it could and should not have granted the applications, absent any of
the requirements set out in section 3(4)(b). This is because Ms F[...] and Mr
Masayimani knew from the dates of the respective incidents in February 2020, who
their debtor was and had all the facts as would enable them to know that they had
been wronged. They would and should have sought legal advice to enable them to
take steps in claiming any damages allegedly suffered. They did not do so for more
than three years and hav e not provided any good cause for their excessive delays,
and their respective claims have prescribed. Appellant will, in any event, be
unreasonably prejudiced by the granting of condonations for the reasons already
adumbrated earlier.
[34] Submissions on behalf of Ms F[...] and Mr Masayimani on appeal were
essentially that they did not know who their debtor was until they consulted their
attorney who investigated the matter. It was only after their attorney conducted the
necessary investigations that the identity of appellant as the debtor and the full set of
facts regarding the electrocutions were established. This was after consultations with
witnesses and some medical reports in the form of hospital records were obtained
that they were in a position to take action against appellant. Therefore, and until all
these facts were established, so went the submission, their claims did not and could
not have become due. The running of prescription therefore only started in October
2023 when all the facts were established subsequent to their attorney having
investigated the matter. This was because due to their disadvantaged background,
Ms F[...] and Mr Masayimani did not know that they had a right to claim against
appellant whom they did not know was the one responsible for the damages
suffered. In other words, they did not know the identity of their debtor and the full set
of facts so as to take the necessary steps provided for in the Institution Act timeously
to recover the debt as they did not know that they had a cause of action against
anyone. Furthermore, they could not have established these facts even by exercise
of reasonable care.
[35] The consistent jurisprudence coming out of the Constitutional Court on section 3
of the Institution Act can be summarised with reference to Links3 in which the court
expressed itself as follows, and also quoted with approval, what the Supreme Court
of Appeal said in Truter:4
[16]“Section 3(4)(b) reads:
‘(b) The court may grant an application referred to i n 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.’
It is clear from section 3(4)(b) that condonation may not be granted where the
creditor’s claim has prescribed.
…
[31] In Truter the Supreme Court of Appeal dealt with the meaning of the phrase
“debt due”. It said:
‘For the purpose of the Act, the term ‘debt due’ means a debt, in cluding a delictual
debt, which is owing and payable. A debt is due in this sense when the creditor
acquires a complete cause of action for the recovery of the debt , that is, when the
entire set of facts which the creditor must prove in order to succeed wi th his or her
claim against the debtor is in place or, in other words, when everything has
happened which would entitle the creditor to institute action and pursue his or her
claim.’
3 Links v Member of the Executive Council, Department of Health, Northern Cape Province 2016 (4) SA
414 (CC) paras 31 and 51.
4 Truter and Another v Deysel 2006 (4) SA 168 (SCA) para 15.
In the next paragraph the Court further said:
‘In a delictual claim, the requirements of fault and unlawfulness do not constitute
factual ingredients of the cause of action, but are legal conclusions to be drawn from
the facts.’”
At paragraph 51 the Constitutional Court then expressed itself as follows:
“The High Court made it clear that, had it not been for its conclusion that the
applicant’s claim had prescribed, it would have condoned the applicant’s failure to
comply with section 3 of the Legal Proceedings Act. Counsel for the respondent did
not argue that this conclusion b y the court of first instance was wrong. Indeed, the
conclusion seems justified to me. The applicant approached attorneys and the Legal
Aid Board within two months or so after being discharged from hospital. He visited
the offices of the Legal Aid Board on numerous occasions in pursuit of his claim. The
Legal Aid Centre dismally failed to attend to his matter for about three years.”
[36] In contradistinction, in this matter one hardly finds anything tangible done by Ms
F[...] and Mr Masayimani in establishin g any of the facts they claimed not to have
known until they met their attorney. About two years or so after Links, the
Constitutional Court succinctly summarised the legal position regarding knowledge of
the facts and knowledge of the debtor with referenc e to what the appellant knew and
its sufficiency or otherwise for him to take action in Loni5. It said:
“When the principle in Links is applied to the present facts, the applicant should have
over time suspected fault on the part of the hospital staff. T here were sufficient
indicators that the medical staff had failed to provide him proper care and treatment,
as he still experienced pain and the wound was infected and oozing pus. With that
experience, he could not have thought or believed that he had rece ived adequate
medical treatment. Furthermore, since he has been given his medical file, he could
medical treatment. Furthermore, since he has been given his medical file, he could
have sought advice at that stage. There was no basis for him to wait more than
seven years to do so. His explanation that he could not take action as he did n ot
have access to independent medical practitioners who could explain to him why he
was limping or why he continued to experience pain in his leg, does not help him
5 Loni v Member of the Executive Council, Department of Health, Eastern Cape Bhisho 2018(3) SA 335
(CC) para 34 – 35.
either. The applicant had all the necessary facts, being his personal knowledge of his
maltreatment and a full record of his treatment in his hospital file, which gave rise to
his claim. This knowledge was sufficient for him to act. This is the same information
that caused him to ultimately seek further advice in 2011.
It is clear, that long be fore the applicant’s discharge from hospital in 2001 and
certainly thereafter, the applicant had knowledge of the facts upon which his claim
was based. He had knowledge of his treatment and the quality (or lack thereof) from
his first day in hospital and had suffered pain on a continuous basis subsequent
thereto. The fact that he was not aware that he was disabled or had developed
osteitis is not the relevant consideration.”
[37] At the risk of being tediously repetitious, I consider it important to recap the
basic factual matrix of both respondents. In respect of Ms F[...], it was at about 10:00
in the morning when, on 17 February 2020 her minor child who was in the care of
her mother accidentally came into contact with live electric cables as a result of
which the minor child was electrocuted thus sustaining bodily injuries. She merely
says that the incident was reported to their ward councillor, Mr Gaju and the police.
She, however, does not indicate who made those reports and when they were made.
Strangely, a statement from Ms F[...]’s mother was taken by a sergeant Baninzi from
Komani detectives about three months later in May 2020. It is unclear why this
statement was not taken shortly after the incident. Furthermore, beyond saying that
she and her mother made numerous follow ups with the police, there is no indication
of whether or not any attempt was made to contact or talk to the relevant detective
being sergeant Baninzi. In any event nothing is said about what exactly, in reporting
the matter to the police, was expected of them in the sense of either an investigation
the matter to the police, was expected of them in the sense of either an investigation
for possible criminal prosecution as is the mandate of the police or whether the
intention was to somehow get compensation from the police. In the latter event, how
this was expected t o result in some award of compensation is not dealt with. In any
event, throughout, Ms F[...] knew from the first day, not only that her minor child had
been burnt but also that the burn wounds were caused by electrocution from illegally
connected electricity.
[38] Two days later, Mr Masayimani also got electrocuted when he came into contact
with live electric cables on 19 February 2020 in the same area of Aloe T Squatter
Camp in Komani as he was walking to a nearby shop. He sustained bodily injuries
as a resul t of which he was rushed to Dr Ndamase’s surgery who treated him and
transferred him to Frontier Hospital where he was admitted and received treatment
for about three weeks. He had to attend numerous physiotherapy sessions until
2022 at Frontier Hospital. His left arm became permanently disabled. Just like Ms
F[...], he knew from day one that the cause of his electrocution was the cables of the
illegally connected electricity.
[39]. His case was, in the main, that before he consulted his attorney, he did not
know that he had a right to institute civil proceedings pursuant to his electrocution.
He also did not know the identity of his debtor. He is a lay person who all along
regarded his electrocution as just an unfortunate incident. The respective section 3
notices were only issued on 5 and 6 October 2023, some three years and seven
months later for both Ms F[...] and Mr Masayimani. There is no real reason apparent
from the papers why these notices were not issued timeously other than the alleged
ignorance about their right to institute civil claims due to their ignorance of the law
and their socio-economic circumstances.
[40] There was also a contention by Ms F[...] and Mr Masayimani which went as
follows. Mere knowledge of the fact that appellant is resp onsible for installation of
electricity in certain areas of Komani is insufficient to meet the requirement of
knowing the debtor. Merely knowing that the electric cables which caused the
electrocutions were connected to appellant’s infrastructure was not sufficient to meet
the requirement of knowing the debtor. They did not know who connected the
electric cables in question to appellant’s infrastructure. It was through the advice
given to them by their attorney that they got to know that appellant had a le gal duty
to protect members of the community from being electrocuted due to illegal electricity
connections. This is all because they are uneducated, unsophisticated and poor.
They also did not know about the existence of section 3 of the Institution Act a nd its
requirements.
[41] Both of them did not unequivocally deny knowing that appellant was responsible
for the supply of electricity to certain areas of Komani. They also did not
unequivocally deny knowing that the illegal electric cables were conne cted to
appellant’s infrastructure. It would have been quite surprising and even
disingenuous in the extreme if they had claimed not to know that their own
municipality was responsible for the supply of electricity in certain areas of Komani.
This would be so because it is generally well known by all and sundry in the country
that the major, if not the only suppliers of electricity the country over are
municipalities and Eskom. This is so especially in informal settlements, townships
and rural areas as it is the government that is responsible for service delivery in
these areas. That knowledge does not need anyone to be sophisticated, employed,
educated or not to be poor or even know the law.
[42] At the very least, it is knowledge that they could have acq uired by taking
reasonable steps to acquire the information. This specific issue is not addressed at
all in their papers in that nowhere do they allege, with any degree of cogency, why
they could not, even by exercise of reasonable care, have acquired this knowledge.
For example, they could have gone to the police station in which one of the incidents
was reported to ask about their options. They did not do so. They could also have
asked their ward councillor whose name was known to them or even gone to
appellant’s offices to make enquiries. They did not do so. They did not even take
these basic steps which would have given them the basic information that they
needed regarding the organ of state that could be responsible for the infrastructure
to which the illegal connections were made. The issue of them being misled by
appellant or anyone or the truth about the ownership of the substation to which the
illegal connections were made does not even arise on the facts of this case. For
more than three years they remained supine and did absolutely nothing at all until
almost four years later. There is no proper explanation for this huge delay and for
only giving notice that should have been given within six months as the legislature
required, almost four years lat er. The period of delay is, in the circumstances,
excessive with no adequate explanation. References to the lockdown due to the
covid 19 declaration of the national state of disaster did not help either as the total
shutdown was for a very limited period a nd was progressively eased to allow free
movement of the people. The whole covid 19 issue is, in any event, nothing more
than a red herring used to explain the huge gaps between the two incidents and the
time at which action was ultimately taken.
[43] The legal position as regards section 3 of the Institution Act and its interplay with
section 12 of the Prescription Act has recently been restated by the Constitutional
Court in Tembani6. In that matter, writing a unanimous judgment of the court,
Rogers J succinctly explained what the Constitutional Court has always said
6 President of the Republic of South Africa and Another v Tembani and Others 2024 (9) BCLR 1152 (CC);
2025(2) SA 371 (CC) paras 84-86.
pertaining to both section 3 of the Institution Act and section 12(3) of the Prescription
Act. He said:
“[84] If, subject to the requisite actual or constructive knowledge by the plaintiff, the
delictual debts in this case became “due” by the 18 August 2014 (as
contemplated in section 3(2)(a) of the Institution Act), and if the plaintiff had the
requisite knowledge by not later than 21 July 2015 (as contemplated in section
3(3)(a) of the Institution Act), they needed condonation in terms of section
3(4)(a) of the Institution Act, because their notices in terms of section 3(2) were
only served in December 2018 and January 2019, more than six months after
the debts became due. And if , by the time the condonation application was
served in April 2019, the debts had prescribed, section 3(4)(b)(i) was an absolute
bar to condonation.
[85] Subject to the requisite actual or constructive knowledge by the creditor, a
delictual debt becomes “d ue”, within the meaning of section 12(3) of the
Prescription Act and section 3(2)(a) of the Institution Act, once the debtor’s
wrongful and deliberate or negligent conduct has caused the creditor to suffer
damage. That is when the creditor is entitled in l aw to institute action for the
recovery of damages.
[86] In terms of section 12(3) of the Prescription Act and section 3(3)(a) of the
Institution Act, this is subject to the qualification that time does not start to run
(that is the debt is not deemed to b e “due”) until the creditor has actual or
constructive knowledge of the identity of the debtor and the “facts from which the
debt arises”. The “facts” do not include that the debtor’s conduct was wrongful or
negligent or that the creditor has a right to s ue the debtor, nor does it include
legal conclusions that may be drawn from the facts . This court has cited with
approval the proposition that time starts to run against a creditor when it has “the
minimum facts that are necessary to institute action” and that the running of
minimum facts that are necessary to institute action” and that the running of
prescription is not postponed until the creditor “becomes aware of the full extent
of its legal rights”. (My underlying)
[44] It was argued on behalf of Ms F[...] and Mr Masayimani that this matter is not
about prescription and that pr escription is a trial issue. That may very well be so.
However, where an application for condonation in terms of the Institution Act is made
or has to be made, prescription has to be determined as part of the condonation
application where it has been raise d. This is so because where a debt has
prescribed, a court has no discretion to grant condonation. I have already concluded
that the explanations tendered for the delay were woefully inadequate by both Ms
F[...] and Mr Masayimani and that unreasonable prejudice was apparent.
[45] In Tembani7 the court further said:
“If a creditor requires condonation in terms of section 3(4)(a) of the Institution Act and
the debtor raises prescription as an objection in terms of section 3(4)(b)(i), the court
must8 determine prescription as part of the condonation application. Condonation is
a threshold issue and section 3(4)(b)(i) makes prescription part of the determination
of that threshold issue.
This causes no prejudice to the creditor. If a debtor raises prescription in its
answering affidavit, the creditor can, in its replying affidavit, advance any grounds of
replication that may be available to it to neutralise prescription. If there are factual
disputes, they can be referred to oral evidence. The fact that presc ription can also
be raised in a special plea is no reason not to deal with it as part of the creditor’s
condonation application.”
[46] I understand this to mean that where prescription has been raised in a special
plea and is raised in an application for c ondonation as is the case in this matter, it
must be determined in the condonation application as it is an integral part of that
application. It is not reserved for later determination during trial. This makes logical
sense legally because where condonation has not been granted, there will be no trial
as the applicant for condonation is, for all intents and purposes, non -suited. It
becomes the end of the matter if the court finds, in a condonation application, that a
claim has prescribed as prescription is dealt at that stage once and for all. In this
claim has prescribed as prescription is dealt at that stage once and for all. In this
matter, the debt has prescribed in that summons was served more than three years
7 Note 4 supra at paras 82-83.
8 My emphasis.
after Ms F[...] and Mr Masayimani had knowledge of the debtor and the minimum
facts necessary for their causes of action. As subm itted on behalf of appellant, on
their respective dates of electrocution, they knew who their debtor was and had the
minimum facts required for them to champion their causes of action. In an event, and
to the extent that they did not have knowledge of thei r debtor, they could have
acquired such knowledge by the exercise of reasonable care as I said earlier. This,
they dismally failed to do at their own peril. Their socio -economic status, their
unsophistication, not knowing they had a right to sue the appel lant, lack of
knowledge about the Institution Act and their lack of education or insufficiency
thereof all do not assist them as all these are not relevant considerations for a
condonation application in terms of the Institution Act.
[47] They maintained t hat they have good prospects of success in the action on the
merits of their claims. It is necessary to point out that the electrocutions in this case
were as a result of illegal connections in circumstances in which the appellant was
not the licensed sup plier of electricity in that specific area. Therefore, this matter is
distinguishable from electrocutions that occur as a result of either faulty connections
in an area or some other fault in the infrastructure of an organ of state causing
foreseeable and preventable danger to the members of the public in an area
supplied with electricity by that organ of state. In this matter the appellant denies
liability for injuries caused by electrocutions in an area for which it is not a licensee
and has not provided electricity to.
[48] Therefore prospects of success can hardly be said to be good in circumstances
in which the sole basis for the damages suffered is an illegal or even criminal
conduct of unknown persons. Whether or not a duty of care for illegal conn ections in
an area in which appellant is not even licensed for, is to my knowledge, not settled.
Their contentions about appellant having been notified about illegal connections also
appear to be unsubstantiated. However, even if they were substantiated, t he
question of damages suffered due to vandalism of government infrastructure caused
by criminality and general lawlessness is, at best, debatable. I do not know how
organs of state could be expected to foresee and even prevent damages suffered in
those circumstances.
Conclusion.
[49] To the extent that Ms F[...] and Mr Masayimani claimed that the illegal
connections were reported to the employees of appellant before the incidents, there
were no details provided. The illegal connections prior to the incident s were alleged
to have been reported to unnamed employees of appellant. The members of the
public who allegedly made the reports to appellant’s employees were similarly not
mentioned nor have they filed confirmatory affidavits. This raises questions about the
reports having been made at all. This is besides the fact that to the extent that the
reports were in writing, something that was not addressed by both Ms F[...] and Mr
Masayimani, no copies of such reports were annexed to the papers. This again goes
to show that the merits of their cases are not a foregone conclusion. It would in my
view, have been strange and counter intuitive for members of Aloe T Squatter Camp
community to report the illegal connections knowing full well that reporting it would
result in their illegal source of electricity supply being cut off. These issues properly
considered, buttress the point raised by the appellant about unreasonable prejudice
in it being required to prove that reports it has no record of were in fact not made. I n
all these circumstances, the appeal must succeed.
Costs.
[50] On the Biowatch principle, Ms F[...] and Mr Masayimani instituted the actions to
assert their constitutional rights against an organ of state. The law on illegal
electricity connections, the damages suffered as a result thereof and liability therefor
is not necessary settled. I am not aware of a matter in which damages suffered as
result of illegal connections in an area for which an organ of state is not licensed to
provide electricity were awarded. Therefore, while Ms F[...] and Mr Masayimani were
unsuccessful, it would not be correct to mulct them with costs.
Results.
[51] In the result the following order is issued:
1. The appeal is upheld with no order as to costs.
2. The order of the court a quo is set aside and replaced with the following order:
2.1 The applications for condonation are dismissed with no order as to costs.
_____________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
I agree
___________________
D. POTGIETER
JUDGE OF THE HIGH COURT
I agree
_______________
A. BEYLEVELD
JUDGE OF THE HIGH COURT (ACTING)
Appearances
Counsel for the appellant : Y. Malunga with R. Booysen
Instructed by : Philip & Patners Attorneys
c/o Yokwana Attorneys
Makhanda
Counsel for the appellant : V. Madokwe with L. Ntikinca
Instructed by : N. Tyatyeka Attorneys
c/o Msitshana Attorneys
Makhanda
Date heard : 10 November 2025
Date delivered : 03 March 2026