Lerato and Moloko Events Management CC v MEC of the Department of Sport, Arts and Culture: Limpopo Province (15890/13) [2018] ZAGPPHC 38 (9 March 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO.: 15830/13

LERATO AND MOLOKO EVENTS MANAGEMENT

PLAINTIFF

CC (Reg. No. 2004/056908/23)

and

THE MEC OF THE DEPARTMENT OF SPORT,

DEFENDANT

ARTS AND CULTURE: LIMPOPO PROVINCE

JUDGMENT

VAN DER WESTHUIZEN, J

[1] The plaintiff instituted proceedings for the payment of a debt for which the defendant is allegedly liable. The defendant defends the action and has filed a notice of exception to the plaintiff's particulars of claim.

Following on the notice of exception, the plaintiff amended its particulars of claim.

[2] The defendant there upon filed a special plea of prescription and pleaded over. In its plea over, the defendant pleaded that there has been non-compliance with the provisions of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002 (the Act).

[3] Albeit that the plea of non-compliance with s 3 of the Act is not categorised in the plea as a "Special Plea", the parties are agreed that that plea should be adjudicated together with the special plea on prescription.

[4] I acceded to the parties' request and the matter before me therefor only relates to the special plea of prescription and the plea of non­ compliance with the provisions of s 3 of the Act. Should the issue of non-compliance with the provisions of s 3 of the Act be decided in the defendant's favour, it will be decisive of the dispute between the parties. The issue of prescription only relates to the cause of action premised upon the oral agreement and a finding in the defendant's favour will dispose of that issue. It is submitted that the question of enrichment, pleaded in the alternative, will then require adjudication.

[5] The special plea of prescription is premised upon the amended particulars of claim now containing an alleged new claim of action. In the initial particulars of claim the plaintiff relied upon an agreement between the parties partly founded upon a written agreement and partly on an oral agreement for payment of a specified amount. In the amended particulars of claim, the cause of action relied upon relates to an alleged oral agreement for which the same amount, or "debt", is claimed. It is common cause between the parties that the debt premised upon the previously written portion of the alleged agreement (the initial cause of action) was paid. The debt due in respect of the oral portion of the initial cause of action was not paid and formed the debt premised upon the "new" cause of action pleaded in the amended particulars of claim.

[6] A period of three years has elapsed since the institution of the action for payment of the "oral" debt, during 2013, and the amendment to the plaintiff's particulars of claim. The amendment to the plaintiff's particulars of claim was effected during January 2018. The alleged oral agreement was concluded during July 2011. Hence, the defendant's view that the plaintiff's claim for payment of that debt has prescribed.

[7] It is submitted on behalf of the defendant that the "new" cause of action differs materially from that initially pleaded. On that premise, it is then submitted that the interruption of prescription, by the issuing of the initial particulars of claim, does not extend to the "new" cause of action and the claim has prescribed.

[8] The defendant submits that the amendment effected to the plaintiffs' particulars of claim was introduced to merely avoid the initial plea of a reliance upon the non-variation clause contained in the aJleged written agreement initially relied upon by the plaintiff. Although it is conceded on behalf of the defendant that the same amount claimed is founded upon the same vouchers in the amended particulars of claim, the defendant submits that the cause of action underlying that claim is essentially completely different from what was initially relied upon.

[9] It is submitted on behalf of the plaintiff that even if there is an alleged "new" cause of action pleaded in the amended

particulars of claim, the debt remains the same. That being so. the plaintiff submits that the interruption of prescription by way of service of legal process is determined with reference to the debt being claimed and not the cause of action underlying that claim.

[10] The Prescription Act, 68 of 1969, provides in s 15 thereof as follows:

"(1) The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

(2) Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse , and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.

(3) ,,

[11] In CGU Insurance Ltd v Rumdel Construction (Pty) U[1]1 the Supreme Court of Appeal confirmed that the "debt" referred to in s 15 of the Prescription Act does not relate to the cause of action , the material facts, but that, which is "begotten" by the material facts, i.e. akin to the relief that is claimed.

[12] In my view, albeit that the causes of action pleaded in the initial particulars of claim and that pleaded in the amended particulars of claim may be different, the relief claimed in both instances is

identical,

i.e. the payment of the same debt. The claims in the respective particulars of claim remain in respect of the same relief and consequently the same debt

[13) It follows that the debt has not prescribed. Accordingly, the defendant's special plea of prescription stands to be dismissed.

[14] There remains the issue of a reliance of the non-compliance with s 3 of the Act. That section provides as follows:

11(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 intention to institute the legal proceedings

in question; or

(b) the organ of state in question has consented in writing the institution of that legal proceedings­

(i) without such notice; or

(ii) upon receipt of a notice which 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.

,,

[15] The Act defines "debt" as.follows:

"(iii) 'debt' means any debt arising from any cause of action·

(a) 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 Jaw ;

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, whether such debt became due before or after the fixed date."

[16] Applying the canons of construction when interpreting a statute, contract or other document,[2] the definition of debt in the Act in the context of the whole Act and on a purposive reading thereof, "debt" clearly only relates to where damages are claimed in respect of whatever cause of action underlies the damages.

[17] The definition of "debt" is narrow in meaning and does not include reference to compliance with contractual obligations that do not relate to liability in respect of damages. That is clearly indicated by the use of the conjunctive word "and" between subsections (a) and (b) of the definition of "debt" in the Act. To hold that the word "and" is to be read as meaning "or" would be forced and untenable. In the context of the Act as a whole there is no room for interpreting the word in such a manner.

[18] I am fortified in my view by the dicta in Nicor IT Consulting (Pfy) Ltd v North West Housing Corporation.[3] Although that matter was decided upon a finding that the debtor was not an organ of state as intended in the Act, and hence that the Act did not apply, the court considered the meaning of the definition of "debt" in the Act. In an obiter dictum,[4] the court held that the "debt" referred to in s 3 of the Act, with reference to the definition thereof in the Act, is limited to a claim for damages arising from whatever cause of action. That dictum is persuasive. I agree therewith.

[19] In the present instance, the claim against the defendant is one arising

specified amount ex contractu. The amount claimed, as recorded earlier, is premised upon vouchers the plaintiff issued to the defendant. It is not a claim for damages arising from contractual obligations. The Act accordingly does not apply.

[20] It follows that the defendant's plea of non-compliance with the provisions of s 3 of the Act stands to be dismissed.

I grant the following order.

(a) The defendant's special plea of prescription and plea of non­

compliance with the provisions of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002, is dismissed.

(b) The defendant is ordered to pay the plaintiff's costs.

CJ VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

On behalf of Applicant: P J J de Jager SC

L Coetzee

Instructed by:

State Attorney

On behalf of Respondent: R G Beaton SC

Instructed by:

Pratt Luyt & De Lange

[1] 2004(2) SA 622 (SCA) at [6] -[7]

[2] Natal Joint Municipal Pension Fund v Endumani Municipality 2012(4) SA 593 (SCA)

[3] 2010(3) SA 90

[4] at [28) to (30)