Premier, Western Cape v Lakay

• Jurisdiction: South Africa
• Citation: 2012 (2) SA 1 (SCA)

Premier, Western Cape v Lakay
2012 (2) SA 1 (SCA)

2012 (2) SA p1

Citation	2012 (2) SA 1 (SCA)
Case No	184/11; [2011] ZASCA 224
Court	Supreme Court of Appeal
Judge	Navsa JA, Cloete JA, Malan JA, Theron JA and Petse AJA
Heard	November 14, 2011
Judgment	November 30, 2011
Counsel	P Weyer SC (with N Bawa) for the appellant.; J Saner for the respondent.

Flynote : Sleutelwoorde B

State — Actions by and against — Actions against — Creditor — Definition — Such including natural guardian — Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 1.

State — Actions by and against — Actions against — Creditor — Distinction C between creditor in Prescription Act and in Institution of Legal Proceedings against Certain Organs of State Act — Creditor in Prescription Act including minor, but not minor's natural guardian enforcing minor's claim — Creditor under Institution of Legal Proceedings Act including minor's natural guardian enforcing minor's claim — Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, ss 1, 3(3)(a) and 3(2)(a); Prescription Act 68 of 1969, s 12(3). D

State — Actions by and against — Actions against — Notice — Failure to give notice — Condonation — Court's discretion to condone — Such not narrow discretion — Appellate court may decide question of condonation according to its own view whether section's requirements fulfilled — Institution of E Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(4).

State — Actions by and against — Actions against — Notice — Failure to give notice — Condonation — Good cause for failure — To demonstrate good cause applicant need explain default sufficiently fully to enable court to understand how it occurred and to assess applicant's conduct and F motives — Each case depending on its own facts — Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(4).

State — Actions by and against — Actions against — Notice — Failure to give notice — Condonation — Costs — Semble: where application for condonation opposed, costs should follow result — Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(4). G

2012 (2) SA p2

Headnote : Kopnota

A In this matter the respondent, acting on behalf of her child, had claimed damages for injuries alleged to have been caused to her child by the servants of the appellant. The appellant had responded with a special plea that it had not received notice of the proceedings in the time allowed by s 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (the Act). The respondent had then applied to a High Court for an B order that the Act did not apply to her or alternatively condoning her non-compliance with the notice requirement. She had been successful and the appellant had appealed the decision to the Supreme Court of Appeal.

In issue on appeal firstly was whether the respondent, as mother and natural guardian and acting on behalf of her child, fell within the definition of a creditor in the Act. That definition reads —

C ''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 mentally ill or under curatorship, as the case may be; . . .'.

The court held in this regard that the word 'tutor' had to be interpreted to D include a natural guardian. (Paragraphs [9] and [11] at 9E and 10A.)

The court commented also on the relationship between ss 3(3)(a) and 3(2)(a) of the Act and s 12(3) of the Prescription Act 68 of 1969. Sections 3(3)(a) and 3(2)(a) provide that —

'(2) A notice [of intended legal proceedings] must —

(a)

E 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);

. . .

(3) For purposes of subsection (2)(a)

(a)

F 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; . . .'

G And s 12(3) of the Prescription Act provides:

'(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 H care.'

The court emphasised that the sections must not be conflated and that a creditor under the Prescription Act included a minor, but not a minor's natural guardian enforcing the minor's claim, whereas a creditor under the Act included a minor's natural guardian enforcing the minor's claim. I (Paragraph [10] at 9H – I.)

In issue further was the High Court's condonation of the respondent's failure to serve notice of the intended proceedings in the time required by s 3 of the Act. In this regard s 3(4) provides that:

'(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 J court having jurisdiction for condonation of such failure.

2012 (2) SA p3

(b) The court may grant an application referred to in paragraph (a) 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.' B

The court commented to begin with on the nature of the discretion the section gave a court, and also on the approach of an appeal court in an appeal against its exercise. It held that the discretion the section afforded was not a narrow one, and that an appellate court was at liberty to decide the question according to its own view whether the section's requirements had been fulfilled, and to substitute its decision simply because it considered its C decision preferable. (Paragraph [14] at 10F – 11B.)

The court also considered the requirement of good cause in s 3(4)(b)(ii). It held that the phrase 'good cause' was usually encountered in applications for failure to comply with a court procedure, but that the principles set out in those cases should not be applied uncritically to the requirement of good D cause in s 3(4)(b)(ii). It held further that the minimum requirement of an applicant for condonation was for the applicant to furnish an explanation for the default that was sufficiently full to enable the court to understand how it really came about, and to assess the applicant's conduct and motives. Beyond that each case had to depend on its own facts. (Paragraphs [14] and [17] at 10G – H and 12C – D.)

Lastly, the court considered the question of the award of costs in applications for E condonation under s 3(4). It held that ordinarily in an application for condonation for non-observance of a court procedure, an applicant would have to pay the respondent's costs if the respondent opposed, unless the respondent's opposition was unreasonable. It doubted though that this was the correct approach in an application for condonation under the Act. This F as such an application was not to do with non-observance of court procedure but was for permission to enforce a right, where a court might grant the permission within prescribed statutory parameters; and where such an application was only necessary if the organ of state relied on the failure to serve a notice. There was much to be said, held the court, for the view that where an application for condonation was opposed, costs should follow the result. (Paragraph [25] at 15A – C.) G

Cases Considered

Annotations:

Reported cases

Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council and Another 1999 (4) SA 799 (W) ([1999] 4 All SA 505): referred to H

Brand v Williams 1988 (3) SA 908 (C): referred to

Cohen Brothers v Samuels 1906 TS 221: referred to

Dauth and Others v Minister of Safety and Security and Others 2009 (1) SA 189 (NC): referred to

Giddey NO v J C Barnard and Partners 2007 (5) SA 525 (CC) (2007 (2) BCLR 125): referred to I

Greyling v Administrator, Natal 1966 (2) SA 684 (D): referred to

Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A): referred to

Jacobs v Kegopotsimang 1937 GWLD 43: referred to

Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA): considered J

2012 (2) SA p4

Malan and Another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) ([2009] 1 All SA 133): referred to A

Meintjies NO v Administrasieraad van Sentraal-Transvaal 1980 (1) SA 283 (T): referred to

Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) (1996 (12) BCLR 1559): referred to

Naylor and Another v Jansen 2007 (1) SA 16 (SCA): referred to B

President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A): referred to

Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A): dictum at 352H – 353A applied.

Unreported Cases

Lakay v Premier, Western Cape (WCC case No 1269/2006, 27 November 2009): overruled in part. C

Statutes Considered

Statutes

The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 1: see Juta's Statutes of South Africa 2010/11 vol 1 at 2-785.

Case Information

D An appeal from the Western Cape High Court, Cape Town (Blignault J).

P Weyer SC (with N Bawa) for the appellant.

J Saner for the respondent.

Cur adv vult. E

Postea (November 30).

Order

F The appeal is dismissed with costs.

Judgment

Cloete JA (Navsa JA, Malan...