Minister of Public Works v Motseng Facilities Management (PTY) Ltd (55380/2014) [2018] ZAGPPHC 56 (28 February 2018)

IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURTOF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 55380/2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

28 FEBRUARY 2018

MIISTER OF PUBLIC WORKS

APPLICANT

And

MOTSENG FACILITIES MANAGEMENT {PTY) LTD

RESPONDENT

LEAVE TO APPEAL

KHUMALOJ

[1] The Applicant who is the Minister of Public Works ("the Minister") is seeking leave to appeal against an order made by this court, following the concession the Minister made, conceding to the issue that was in contention between the parties. Motseng Facilities Management (Pty) Ltd, the Respondent, (hereinafter referred to as "Motseng") raised an exception against the Minister's Special Plea as lacking averments that are necessary to sustain a defence. The Minister conceded to the Special Plea admitting that according to the law as it stands (the issue having been decided by the Supreme Court of Appeal in the matter of Vhembe Municipality) the exception should succeed, whereupon the court upheld the exception and dismissed the Minister's special plea.

[2] The Respondent 's claim against the Minister is for payment of an amount of R50 000 000.00 for contractual work that Motseng alleges was rendered to the Minister. The Minister filed a Special Plea to the effect that Motseng has not complied with s 3 (1) (a) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 ("the Act") in that Motseng failed to give notification to the Minister within six months from the date it knew about the debt, on his intention to institute legal proceedings and also with s 3 (2) (b) in that the delayed letter failed to set out the facts giving rise to the debt and the particulars of the debt within Motseng's knowledge nor did Motseng seek condonation for non-compliance.

[3] Motseng, had initially conceded to the Special Plea, however with the ardent aid of new attorneys challenged the Special Plea on the basis that the Act was not applicable to his action as it applies only to claims for damages, his was for specific performance.

[4] The Minister, conceding to the rationale of the Respondent's exception indicated to the court to have been swayed by the realisation of the Supreme Court of Appeal (SCA) decision in Vhembe District Municipality v Stewarts and Lloyds Trading (Booysens (Pty) Ltd 2014 (3) All SA 675 (SCA) where the court held that a contractual claim for specific performance is nut a "debt" as envisaged in the Act and therefore no notice in terms of s 3 was required in respect of such a claim.

[5] The Minister is now seeking leave to appeal on the grounds that there is a reasonable prospect that the Supreme Courts 's Vhembe Judgment upon which the order rests may be considered clearly wrong by the court on appeal to it for any one or more of the following reasons, that:

[5 .1] In Vhembe the legal argument that has arisen in the present matter was not presented to the court, nor considered by it in reaching its conclusions.

[5.2] In Vhembe the effect of the drafting history on the conclusion reached in its

judgment in particular did not receive consideration.

[5.3] In Vhembe the SCA moreover did not fully consider the effect of its judgment on the purpose of limitation provisions as identified by the Constitutional Court in Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC).

[5.4] In Vhembe the SCA also did not consider the implications of its judgment for cases in which a claim for payment in terms of a contract (or the basis upon which it is opposed) does depend on the memory of people, and where it would therefore be desirable that the Defendant be given timeous notice of the

proceedings in order to investigate the contemplated claim and secure the necessary evidence. Hence the court did not consider the anomalous an inequitable consequence of a lack of such timeous notice.

[6] Furthermore, Mr Gauntlet, for the Minister argued that the Minister's leave to appeal is alleged to be further based on the compelling importance of the SCA reconsidering (its own judgment) a judgment which stands as a precedent and therefore precludes the ventilation before the High Courts throughout the country of arguments of substance which were not considered by the Supreme Court of Appeal in Vhembe. It is also of compelling importance that parties in the position of the Defendant receive the full statutory protection to which they are entitled.

[7] In respect of the court that is to hear the appeal, the Minister argued that :

[7 .1] the matter involve exclusive questions of law warranting an appeal to the SCA. The SCA is the appropriate court to hear the appeal itself, and therefore cannot be revisited by a full bench of the High Court.

[7.2] The question of law raised is of sufficient general importance to warrant the SCA" s attention, because it involved claims for public money against the organs of state in all spheres of Government and throughout the Republic .

[8] In resisting the Application Mr Vorster for Motseng argued that the Applicant 's stated grounds upon which the Minister believes there are prospects of success militates against the principle of stare decisis, moreover the expectation that the SCA constituted differently might arrive at a different decision, thus repudiating a binding precedent. It argued that it is trite that the SCA is bound by its own decisions unless it is satisfied that its earlier decisions (s) were clearly wrong.

[9] With reference to the matter of Media 24 Limited v SA Taxi Securitisation (Pty) Ltd 2011 (5) SA 329 (SCA) at [33] and [34], Mr Vorster, pointed out that the position has been summarised thereat as follows:

"Moreover as it has been underscored by the Constitutional Court ... the principle of stare decisis is manifestation of the rule of law itself which in turn is a founding value of our Constitution. I say this all to accentuate why mere lip service to the doctrine of precedent is not enough ; why deviation from previous decisions should not be undertaken lightly"

[10] The rule of law must be upheld. The principle is a juridical command to the courts to respect decisions already made in a given area of the law, they being bound by their previous judicial decisions, as well as decisions of the superior courts, which are to be followed even if they are clearly wrong. In Camps Bay Ratepayers and Resident Association and Another 2011 (4) SA 42 (CC); 2011 (2) BCLR 121 (CC) Brands AJ articulated the precedent principle as follows:

" Stare decisis' therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution."

[11] Brand AJ in Media 24 noted the conclusion by various authorities that 'what it boils down to, is: Certainty, predictability, reliability, equality, uniformity, convenience: these are the principle advantages to be gained by a legal system from the principle of 'stare decisis'. He indicated that 'all this to accentuate why mere lip service to the doctrine of precedent is not enough; why deviation from previous decisions should not be undertaken lightly. He acknowledged the same approach in the matter of Brisley v Drotsky 2002 (4) SA 1 (SCA) at [8], where the court held that when the court has taken a policy decision, they cannot change it just because they would have decided the matter differently. The court concluded that they must live with that policy decision, bearing in mind that litigants and legal practitioners have arranged their affairs in accordance with that decision. Unless they are therefore satisfied that there are good reasons for change, they should confirm the status a quo.

[12] The question of application of stare decisis is therefore not a light matter and to be regarded as mandatory. The principle indeed obligates courts to follow legal precedents set by previous decisions, specifically where the circumstances under which the decision was made are no different, there being no exceptional circumstances that justify deviation or reconsideration thereof.

[13] In point is the statement of principle by Didcott J in Credex Finance (Pty) Ltd v Kuhn 1977 (3) SA 482 (N) concisely summarised in the headnote to that judgment that:

'The doctrine of judicial precedent would be subverted if judicial officers, of their own accord or at the instance of litigants, were to refuse to follow decisions binding on them in the hope that appellate tribunals with the power to do so might be persuaded to reverse the decisions and thus to vindicate them ex post facto. Such a course cannot be tolerated.'

[14] What therefore determines what is a good reason to deviate from the principle in the South African context? We therefore must be satisfied that the decisions were clearly wrong, or the circumstances under which the decision was made different, with the facts fundamentally distinct or exceptional circumstances prevailing.

[15] The contentions raised by the Minister are that: In Vhembe the SCA moreover did not fully consider the effect of its judgment on the purpose of limitation provisions as identified by the Constitutional Court in Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC).

[16] The Minister here refers to issues of practicality that were raised in Moh/omi. To the contrary, what actually occurred in Vhembe is that the court specifically referred to the whole reasoning of the argument in Mohlomi that explained the purpose of notice provisions in respect of organs of state, premised on the practicality thereof. Thereat Van Zyl AJA concurred with Rall AJ 's approach in Thabani Zulu & Co (Pty) Ltd v Minister of Water Affairs & another 2012 (4) SA 91 (KZD) which approach he considered moreover, to be consistent with the traditional justification for notice provisions, explained by Didcott J in Mohlomi as follows:

"An insistence on notices of the kind required bys 113(1) is by no means peculiar to the particular proceedings that it governs. Similar conditions precedent to the institution of actions are and have long been familiar features of our statutory terrain, especially the part occupied by departments of State, provincial administrations and local authorities once they become prospective defendants. The conventional explanation for demanding prior notification of any intention to sue such an organ of government is that, with its extensive activities and large staff which tends to shift, it needs the opportunity to investigate claims laid against it, to consider them responsibly and to decide, before getting embroiled in litigation at public expense, whether it ought to accept, reject or endeavour to settle them."

[17] Van Zyl went further and considered the differentiation made in respect of none damage claims, especially contractual debts, again as correctly observed by Rall AJ in Thabani Zulu, and made the following statement:

"the evidence in damages cases is more likely to depend on the memory of people than on documents, and it is accordingly desirable that the defendant be given timeous notice of the proceedings in order for it to be able to investigate the contemplated claim, and to secure the necessary evidence . By contrast as Lever AJ put it in Nicor Consulting (para 26),, a claim for payment in terms of a contract is more likely to rely on documentary evidence, such as contracts, delivery notes and correspondence, as well as possible legal issues, such as whether or not the relevant functionary had the necessary authority to enter into the contract or not" . I accordingly hold, as the high court did, that as the first respondent's cla im is not a damages claim the Act does not apply to it. It was therefore unnecessary for the first respondent to have complied with s 3 of the Act."

[18] As a result, in Vhembe there was an important consideration of key aspects by Rall in Thulani of Didcott AJ's analysis in Mohlomi, whose ratio decidendi was regarded by the court as part of and the basis of its decision. Consequently resulting in a full contemplation of the effect of its decision upholding the inapplicability of the limitation on contractual claims

[19] The Minister's further contention was that, in Vhembe, the SCA also did not consider the implications of its judgment for cases in which a claim for payment in terms of a contract (or the basis upon which it is opposed) does depend on the memory of people, and where it would therefore be desirable that the Defendant be given timeous notice of the proceedings in order to investigate the contemplated claim and secure the necessary evidence. Hence argued that the court did not consider the anomalous an inequitable consequence of a lack of such timeous notice.

[20] In dealing with the implication of its decision on a claim for payment in terms of a contract, Van Zyl AJ referred to Lever AJ's elucidation in Nicor Consulting v Northwest 2010 {3} SA 90 at [26] following a quote from Mohlomi's case that reads:

'[9] ... The conventional explanation for demanding prior notification of any intention to sue an organ of government is that, with its extensive activities and large staff which tends to shift, it needs the opportunity to investigate claims laid against it, to consider them responsibly and to decide, before gett ing embroiled in litigation at public expense, whether it ought to accept, reject or endeavour to settle them.'

and a submission that the reasons for requiring prior notice of a claim were also applicable to claims where a balance was claimed as due in terms of a contract.

[21] In addition, Van Zyl AJ supported Lever J's agreement with a submission made in Nicor that where a claim for payment of a balance due in terms of a contract or where specific performance of a contract was claimed, the issues to be decided would generally be far narrower that the issues to be canvassed in a claim for damages, whether they were contractual or delictual damages, consequently the need for the protection set out in 'conventional explanation' in Mohlomi's case would not be compelling in a claim for payment due in respect of contract as it would in a claim for damages.

[22] the position in Vhembe resonates with how the proinciple of stare decisis was navigated in Caxton Ltd v Reeva forman (Pty) Ltd [1990] ZASCA 47 .1990 (3) SA 547 (A) and Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A). although in CAXTON, it is true to say that the issue under consideration was not fully discussed with the court simply accepting that in the light of DHLOMO , a trading company can sue for damages in respect of a defamatory statement. It was held that ‘it however ,does not render the decision less binding than one which had been fully discussed. It found that the first mentioned decision (Dlomo) was clearly part of the rationale or basis for the decision ,that is in the parlance of the doctrine of precedent ,the ratio decideni

[21] in accordance with the doctrine of precedent,also expressed in the principle of stare decisis, the SCA is therefore bound to its decision in Vhembe and that of the CC in Mohlomo unless if the court is satisfied that those decisions were clearly wrong.

[22] there are no circumstances that warrant the exercise of a courts discretion in favour of the Minister’s application for leave to appeal,there being no prospects of success or a compelling reason that warrants the matter going on appeal

[23] it is therefore ordered

1. Codonation is granted for the one day delay in filing the notice of application for leave to appeal

2. The application for leave to appeal is dismissed with costs.

N V KHUMALO J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION,PRETORIA

ON BEHALF OF APPLICANT JJ GAUNTLET SC QC

INSTRUCTED BY STATE ATTORNY (PRETORIA)

Tel:012 309-1672

Ref:4677/2015/z14/LR

Ref:MR LETSOKO

ON BEHALF OF RESPONDENT: J P VORSTER S.C

VFV ATTORNEYS

Tel:(012) 460-8704

Ref:SVDM/NE/MAT86836