Legal Aid Board and Others v Singh

• Jurisdiction: South Africa
• Judge: Theron J, Kruger J and Radebe AJ
• Judgment Date: 25 August 2008
• Citation: 2009 (1) SA 184 (N)
• Docket Number: AR 99/2007
• Hearing Date: 04 February 2008
• Counsel: FR Memani for the first appellant. T Mukadam for the second and third appellants. AD Collingwood for the respondent.
• Court: Natal Provincial Division

Theron J:

[1] This appeal raises the question whether a court has the power, in G terms of s 3(4) of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 (the Act), to condone the institution of legal proceedings where the provisions of s 3(1)(a) of the Act have not been complied with.

[2] The respondent is an attorney of this court. On 28 October 2002 the H respondent was charged with 617 counts of fraud, it being alleged that he had defrauded the first appellant. At the time the second appellant had been a senior public prosecutor in the employ of the third appellant. Some of the charges against the respondent were terminated upon the grant of a permanent stay of prosecution on 30 August 2003 and the I remainder of the charges were withdrawn on 30 August 2004.

[3] In October 2005 the respondent instituted an action against the appellants in which he claimed damages for malicious prosecution and defamation. The second appellant filed a special plea in which he alleged that the respondent had failed to comply with the provisions of s 3(1) of J

Theron J

A the Act. [1] It was common cause that the first appellant was an organ of State; that the respondent's claim was a debt within the meaning of s 3 of the Act; that the respondent had failed to give notice within six months from the date when the debt became due; that the respondent had instituted proceedings against the first appellant without having given B the required notice and that the first appellant had not consented to the institution of such proceedings.

[4] In response to the special plea, the respondent instituted proceedings in the court a quo during March 2006 in which he sought, inter alia, an order in the following terms:

C That the plaintiff's [respondent's] failure to comply with s 3 of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 be and is hereby condoned.

That the plaintiff's issue and service of summons and all subsequent process filed under this case number by the respective parties be and is D hereby condoned.

The matter was heard by Baqwa AJ and, on 8 September 2006, the judge made an order to the effect that 'condonation is hereby granted'. On appeal it was accepted by all the parties that the judge in the court a quo had granted condonation as prayed for by the respondent and set out E above. No appeal was directed at the costs order which had been made by the trial court.

[5] The respondent had, in his affidavit filed in support of the condonation application, alleged that the court was entitled, in terms of s 3(4) of F the Act, [2] to condone his failure to comply with s 3(1) of the Act, as the

Theron J

debt had not been extinguished by prescription and good cause existed A for such failure. The respondent further alleged that his...