MEC for Education, KwaZulu-Natal v Shange

• Jurisdiction: South Africa
• Judgment Date: 01 June 2012
• Citation: 2012 (5) SA 313 (SCA)

MEC for Education, KwaZulu-Natal v Shange
2012 (5) SA 313 (SCA)

2012 (5) SA p313

Citation	2012 (5) SA 313 (SCA)
Case No	529/11; [2012] ZASCA 98
Court	Supreme Court of Appeal
Judge	Farlam JA, Navsa JA, Heher JA, Snyders JA and Petse AJA
Heard	May 8, 2012
Judgment	June 1, 2012
Counsel	AK Kissoon Singh SC for the appellant.; M Pillemer SC (with B Bedderson) for the respondent.

Flynote : Sleutelwoorde B

State — Actions by and against — Actions against — Notice — Failure to give notice — Condonation — Requirement for, that debt not have prescribed — Prescription Act stipulating that prescription running from when debt due and that debt due only when creditor knowing identity of debtor and facts C from which debt arising — Rural learner struck in eye by belt teacher was using to punish another learner — Learner acquiring knowledge of facts from which debt arising by end of incident — But only acquiring knowledge of debtor two and a half years later from Public Protector — Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(4); Prescription Act 68 of 1969, ss 12(1) and 12(3). D

State — Actions by and against — Actions against — Notice — Failure to give notice — Condonation — Good cause for failure — Rural learner struck in eye by belt teacher using to punish another learner — Learner entirely reliant on others to pursue his claim — Attorney mistakenly sending notice to Minister of Education rather than MEC — Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(4). E

Headnote : Kopnota

In this case an MEC for Education appealed a high court's grant of condonation to a learner for non-compliance with s 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (the Act). The Supreme Court of Appeal (the SCA) considered whether the requirements for the grant were met. Those are in s 3(4) of the Act: F

'(4)(a) If an organ of state relies on a creditor's failure to serve a notice [of intention to proceed] in terms of subsection (2)(a), the creditor may apply to a court having jurisdiction for condonation of such failure. G

(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 creditor; and

(iii)

the organ of state was not unreasonably prejudiced by the failure.' H

Was the debt extinguished by prescription?

This could be determined by applying ss 12(1) and (3) of the Prescription Act 68 of 1969 to the facts. (Paragraphs [5] – [6] at 317F – H.) Those sections read:

'(1) Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to run as soon as the debt is due. I

. . .

(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.' [Emphasis added.] J

2012 (5) SA p314

A Knowledge of the facts from which the debt arose

The SCA held that the learner knew the facts from which the debt arose by the end of the event: a teacher's belt tip had struck and injured the learner's eye. The teacher was at the time punishing another learner. (Paragraphs [1] and [7] at 316B and 318C.)

B Knowledge of the identity of the debtor

Insofar as the learner could claim against the teacher, the learner again had knowledge of his debtor by the end of the incident, which took place in June 2003. But he only learnt the MEC was his debtor some time later. For at the time the teacher said the blow was a 'mistake' and the learner in his words 'thought . . . that was the end of the matter'. (Paragraphs [2] and [8] C at 316D – F and 319A – B.)

In January 2006 a friend of the learner's mother asked the learner about the eye patch he was wearing, and on hearing of the incident suggested he should complain to the Public Protector. The learner promptly did so and in the same month the Public Protector advised him to claim against the MEC. (Paragraph [2] at 316D – F.)

D This was when he learnt the MEC was his debtor. As a rural learner he could not have been expected to know before. (Paragraph [11] at 319D – E.)

Prescription started to run then and it had 18 months to go when the learner became a major in July 2007. In December 2008 summons was served, and in January 2009 the three-year prescription period ended. (Paragraph [12] at 320B – C.)

E Good cause for not complying with s 3(2)(a) of the Act

(non-compliance comprising of a failure to serve a notice of intention to proceed on the organ of state, within six months of the debt becoming due in terms of s 3 of the Act)

After the Public Protector told the learner of his claim, he went to an attorney F and asked her to proceed. On the 2nd of February she sent a s 3 notice, but to the Minister of Education, rather than the MEC. In December 2008 she served a summons on the MEC, and the MEC delivered a special plea for dismissal of the claim, based on her not having received a s 3 notice. Thereafter, in May 2010, the attorney sent a notice to the MEC and also applied to the high court for condonation. (Paragraphs [2], [3] and [16] G at 316F, 317B – C and 321A – B.)

The SCA held that good cause had been shown. The learner could not be blamed for any delay or failure. He was reliant on others to prosecute his claim, and they had failed him. (Paragraphs [16], [18] and [21] at 321B, 321E – G and 321I.)

H Moreover, the MEC had never alleged that the learner had acted unreasonably or mala fide in trying to enforce his claim, and the claim, on the learner's allegations, showed strong prospects of success. (Paragraph [19] at 321G – H.)

The organ of state was not unreasonably prejudiced

The SCA held that the MEC had not been unreasonably prejudiced by the learner's failure to give notice in time. The MEC had not related her claim of prejudice to any facts, and nor had she disputed the I learner's allegation that the teacher and pupils present at the time of the incident were available. (Paragraph [22] at 322A – B.)

Thus, the requirements of s 3(4) being met, the SCA upheld the high court's grant of condonation and dismissed the MEC's appeal. (Paragraph [23] at 322C.) J

2012 (5) SA p315

Cases Considered

Annotations: A

Case law

ABP 4x4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd 1999 (3) SA 924 (SCA): referred to

Ferreira v Ntshingila 1990 (4) SA 271 (A): referred to

Gericke v Sack 1978 (1) SA 821 (A): applied B

Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA): dictum in para [8] applied

Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA): referred to

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) ([2007] 1 All SA 309): referred to C

Minister of Safety and Security v De Witt 2009 (1) SA 457 (SCA): dictum in para [11] applied

Nedcor Bank Bpk v Regering van die Republiek van Suid-Afrika 2001 (1) SA 987 (SCA) ([2001] 1 All SA 107): referred to

Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA): dictum in para [25] applied D

Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A): referred to

Shange v MEC for Education, KwaZulu-Natal 2012 (2) SA 519 (KZD): confirmed on appeal E

Truter and Another v Deysel 2006 (4) SA 168 (SCA): referred to

Van Staden v Fourie 1989 (3) SA 200 (A): referred to

Van Zijl v Hoogenhout 2005 (2) SA 93 (SCA) ([2004] 4 All SA 427): referred to

Yellow Star Properties 1020 (Pty) Ltd v MEC, Department of Development Planning and Local Government, Gauteng 2009 (3) SA 577 (SCA) ([2009] 3 All SA 475): referred to. F

Statutes Considered

Statutes

The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(4): see Juta's Statutes of South Africa 2011/12 vol 1 at 2-792 G

The Prescription Act 68 of 1969, ss 12(1) and 12(3): see Juta's Statutes of South Africa 2011/12 vol 1 at 2-915.

Case Information

An appeal from the KwaZulu-Natal High Court, Durban (Govindasamy AJ). H

AK Kissoon Singh SC for the appellant.

M Pillemer SC (with B Bedderson) for the respondent.

Cur adv vult. I

Postea (June 1).

Order

The appeal is dismissed with costs, including the costs of two counsel. J

2012 (5) SA p316

Judgment

Snyders JA (Farlam JA, Navsa JA, Heher JA and Petse AJA concurring): A

[1] During June 2003 the respondent, a 15-year-old Grade 9 learner, suffered a blunt-force injury to his right eye, allegedly at the hand of one of his teachers who was administering corporal punishment with a belt to B another learner. The tip of the belt struck the respondent on the side of his eye. An action was instituted by the respondent to recover damages from the appellant. Before the matter proceeded to trial an application was launched by the respondent to seek condonation for what seemed an acknowledged non-compliance with the provisions of the Institution of C Legal Proceedings against Certain Organs of State Act 40 of 2002 (the...