Premier, Western Cape v Lakay

• Jurisdiction: South Africa
• Judge: Navsa JA, Cloete JA, Malan JA, Theron JA and Petse AJA
• Judgment Date: 30 November 2011
• Citation: 2012 (2) SA 1 (SCA)
• Docket Number: 184/11 [2011] ZASCA 224
• Hearing Date: 14 November 2011
• Counsel: P Weyer SC (with N Bawa) for the appellant. J Saner for the respondent.
• Court: Supreme Court of Appeal

Cloete JA (Navsa JA, Malan JA, Theron JA and Petse AJA concurring):

G [1] The appellant is the Premier of the Western Cape. The respondent is the mother and natural guardian of her minor child, Junate. It is convenient to refer to the Premier as such and to the respondent as 'the applicant'. On 12 December 1998 Junate was born at the Tygerberg Hospital (a provincial hospital) severely brain-damaged. On 9 February 2006 the applicant, as the plaintiff and acting in her capacity as aforesaid, H instituted an action for damages against the Premier, claiming that it was the negligence of the Province's employees at the Tygerberg Hospital that caused Junate's condition. In March 2009 the Premier delivered a special plea alleging that the applicant had not timeously given notice of the proceedings as required by s 3 of the Institution of Legal Proceedings I against Certain Organs of State Act 40 of 2002 (the 2002 Act). In response, the appellant brought motion proceedings for a declaratory order that the 2002 Act was not applicable and in the alternative, for condonation of the non-timeous service by her of a notice at the end of October 2003. I should say immediately that the Premier did not contend that the notice did not comply, so far as its contents are J concerned, with the 2002 Act.

Cloete JA (Navsa JA, Malan JA, Theron JA and Petse AJA concurring)

[2] The court a quo (Blignault J) granted an order declaring that the A applicant's action was not barred by reason of non-compliance with the provisions of s 3 of the 2002 Act (the reason for the formulation of the order in these terms will become apparent shortly) and ordered the Premier to pay the applicant's costs occasioned by the opposition to the application. Leave to appeal to this court was subsequently granted B by the court a quo.

[3] It would be convenient to set out the relevant provisions of the 2002 Act at this point. I shall begin with s 3:

'(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless — C

(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;

. . .

(2) A notice must —

(a)

within six months from the date on which the debt became due, be D served on the organ of state in accordance with section 4(1);

. . .

(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 E 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. F

(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; G

(ii)

good cause exists for the failure by the creditor; and

(iii)

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

Other relevant provisions are s 2(2) which is referred to in s 3(3)(b) (it is convenient to quote the transitional provisions in ss 2(3) and (4) as well) and certain definitions: H

'2(2) Subject to section 3 and subsections (3) and (4), a debt which became due —

(a)

before the fixed date, which has not been extinguished by prescription and in respect of which legal proceedings were not instituted before that date; or

(b)

after the fixed date, I

will be extinguished by prescription as contemplated in Chapter III of the Prescription Act, 1969 (Act 68 of 1969), read with the provisions of that Act relating thereto.

(3) Subject to subsection (4), any period of prescription which was applicable to any debt referred to in subsection (2)(a), before the fixed date, will no longer be applicable to such debt after the fixed date. J

Cloete JA (Navsa JA, Malan JA, Theron JA and Petse AJA concurring)

A (4)(a) The expired portion of any period of prescription applicable to a debt referred to in subsection (2)(a), must be deducted from the said period of prescription contemplated in Chapter III of the Prescription Act, 1969, read with the provisions of that Act relating thereto, and the balance of the period of prescription so arrived at will constitute the new unexpired portion of prescription for such debt, applicable as from B the fixed date.

(b) If the unexpired portion of the period of prescription of a debt referred to in paragraph (a) will be completed within 12 months after the fixed date, that period of prescription must only be regarded as having been completed 12 months after the fixed date.'

C The relevant definitions are these.

'Creditor' means —

'a person who intends to institute legal proceedings against an organ of state for the recovery of a debt or who has instituted such proceedings, and includes such person's tutor or curator if such person is a minor or D mentally ill or under curatorship, as the case may be.'

'Debt' means —

'any debt arising from any cause of action —

(a)

E which arises from delictual, contractual or any other liability, including a cause of action which relates to or arises from any —

(i)

act performed under or in terms of any law; or

(ii)

omission to do anything which should have been done under or in terms of any law; and

(b)

for which an organ of state is liable for payment of damages.'

'Fixed date' means —

F 'the date of commencement of this Act',

which was 28 November 2002.

'Organ of State' includes —

'(a)

any . . . provincial department'.

G The essence of these provisions is that a 'creditor' must give an 'organ of state' written notice of intention to institute legal proceedings for the recovery of a 'debt', within six months from the date on which the 'debt' became due, before the legal proceedings may be commenced; and if this has not been done, and if the 'organ of state' relies on the failure to do so, a court may grant condonation to the 'creditor' within defined H parameters.

[4] The court a quo held that the 2002 Act was not applicable as the applicant did not fall within the definition of 'creditor'. The court nevertheless went on to deal with the applicant's application for condonation in case its interpretation was incorrect, and found that the I applicant would have been entitled to condonation had she been a creditor — hence the terms of the order made.

[5] In finding that the respondent was not a creditor, the court a quo found support in the general principle that where a guardian acts on behalf of a minor, it is still the minor who is a party to the action: J Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A)

Cloete JA (Navsa JA, Malan JA, Theron JA and Petse AJA concurring)

at 66H – I. The court a quo also found support for its interpretation in A two sections of the Prescription Act 68 of 1969, namely:

(a) Section 13(1)(a) which provides that the completion of prescription is delayed 'if . . . the creditor is a minor or is insane or is a person under curatorship . . . .' The learned judge said that this section made it clear B that the term 'creditor' in the Prescription Act refers to a minor and not his or her guardian, and went on to say that the provisions of the Prescription Act, including s 13(1)(a) thereof, were expressly incorporated in the 2002 Act by s 2(2)(b); and

(b) section 12(3), which provides: C

'(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.'

This section was interpreted in the following passage, quoted by the D court a quo, in Brand v Williams 1988 (3) SA 908 (C) at 912F – 913A:

'The mere fact that a creditor who is a minor would not be able to institute proceedings without the assistance of his guardian is no reason for construing the word ''creditor'' in s 12(3) as a reference to his E guardian, or for imputing the knowledge of the guardian to the creditor for the purpose of the section. To the extent that the decision in Jacobs' [1] case is in conflict with this approach, I decline to follow it and prefer instead the decision in the Greyling [2] case.

There is nothing in the Prescription Act to suggest that the word F ''creditor'' in s 12(3) is to be construed as meaning the creditor's guardian, if the creditor is a minor. Such a construction would in effect involve a rewriting of the section and in my judgment cannot be supported.

In certain circumstances knowledge acquired by an agent may be G imputed to his principal. This does not mean, of course, that, for the purpose of s 12(3) of the Prescription Act, knowledge acquired by a minor's guardian as to the identity of the minor's debtor is necessarily to be imputed to the minor...