Magadaza v Yaka and Others (5380/2016) [2018] ZAECGHC 87 (5 September 2018)

Magadaza v Yaka and Others (5380/2016) [2018] ZAECGHC 87 (5 September 2018)

The court found that the plaintiff did not comply with the statutory notice requirements under the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002. The evidence established that the original postal list was altered at the plaintiff's attorneys' offices to falsely represent that notice had been given, and the track and trace report confirmed that no letter was sent to the National Commissioner in Pretoria. The court held that the special plea of non-compliance must succeed, barring the plaintiff from proceeding against the Minister without first seeking condonation. Given the deliberate attempt to circumvent statutory requirements, the court ordered costs de...

Citation
[2018] ZAECGHC 87
Parties
Plaintiff: Nceba Magadaza; Defendant: Mkhululi Yaka; Defendant: Minister of Police; Defendant: Constable Barnes; Defendant: Constable Gola
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
5 September 2018
Case Number
5380/2016
Procedural Posture
Civil Trial / Special Plea Regarding Compliance With Statutory Notice Requirements
Outcome
Special plea upheld; plaintiff barred from proceeding against the Minister without condonation; costs awarded de bonis propriis against plaintiff's attorneys.
Judges
M Roberson
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Special Plea, Notice Requirements, Condonation, Costs De Bonis Propriis
Civil Procedure Institution of Legal Proceedings Against Organs of State Act Special Plea Notice Requirements Condonation Costs De Bonis Propriis

Case Brief

Summary, issues, holding and outcome

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Parties

Nceba Magadaza

Plaintiff

Mkhululi Yaka

Defendant

Minister of Police

Defendant

Constable Barnes

Defendant

Constable Gola

Defendant

Procedural Posture

Civil Trial / Special Plea Regarding Compliance With Statutory Notice Requirements

Legal Issues

  1. 1 Whether the plaintiff complied with the notice requirements under the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 before instituting action against the Minister of Police.
  2. 2 Whether the special plea of non-compliance with statutory notice requirements should be upheld.
  3. 3 Whether costs should be awarded de bonis propriis against the plaintiff's attorneys for dishonest conduct.

Ratio Decidendi

The court found that the plaintiff did not comply with the statutory notice requirements under the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002. The evidence established that the original postal list was altered at the plaintiff's attorneys' offices to falsely represent that notice had been given, and the track and trace report confirmed that no letter was sent to the National Commissioner in Pretoria. The court held that the special plea of non-compliance must succeed, barring the plaintiff from proceeding against the Minister without first seeking condonation. Given the deliberate attempt to circumvent statutory requirements, the court ordered costs de...

Court Disposition

Special plea upheld; plaintiff barred from proceeding against the Minister without condonation; costs awarded de bonis propriis against plaintiff's attorneys.

Orders

  • The second defendant's special plea is upheld with costs, such costs to be paid by Mandla, Falithenjwa Incorporated de bonis propriis on the attorney and client scale.
  • The Registrar is requested to forward a copy of this judgment to the Cape Law Society.