Mthembu v Member of the Executive Council for Education, Eastern Cape and Another (943/2007) [2014] ZAECMHC 13 (11 March 2014)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, MTHATHA)

CASE NO.: 943/2007

In the matter between:

THABO MTHEMBU Plaintiff

And

MEMBER OF THE EXECUTIVE COUNCIL

FOR EDUCATION, EASTERN CAPE 1st Defendant

BUYISILE ZOKO 2nd Defendant

JUDGMENT

BESHE, J:

[1] The plaintiff alleges that he was assaulted by the second defendant who was a teacher at a school where he was a student. On the 13 July 2007 plaintiff issued summonses against the Minister of Education as first defendant on the basis of being the employer of the second defendant and therefore vicariously liable for his actions.

[2] In February 2010 a judgment by default was granted against the defendants. In April of the same year rescission of the said judgment was sought on the basis apparently, that it was erroneously sought and erroneously granted. Plaintiff having been under the erroneous impression that the second defendant was employed by the Minister of Education. Plaintiff abandoned the judgment that was granted in his favour by default with the result that it was rescinded on the 14 October 2010.

[3] The proceedings that are serving before me stem from what happened after the rescission of the said judgment. What transpired after the rescission of the judgment is best described by Mageza AJ in a judgment delivered on the 3 November 2011 in an earlier application in this matter. This is what he said:

“It is not difficult to imagine the position the Plaintiff must have found itself in once it dawned on it that it no longer had recourse as against the Minister of Education and prescription had possibly set in. Undeterred by this development and in the best tradition of astute legal practitioner’s ability to find ways within the Rules of Court, as opposed to commencing new proceedings against the correct organ of state – the MEC, an election to ‘substitute’ rather than to issue an serve new Summonses was made.”

[4] In that application, (before Mageza AJ) the substituted defendant, being the MEC for Education, Eastern Cape sought to have an application for the amendment of particulars of claim declared an irregular step in terms of Rule 30. Defendant also raised the issue of failure by the plaintiff to comply with Section 3 of the Institution of Legal Proceedings Against Certain Organs of State, Act 40 of 2002.

[5] The latter point is one of the two issues raised by the first defendant (MEC) by way of special pleas in these proceedings. The special pleas are the following:

“1. In terms of section 11(d) of the Prescription Act, Act 68 of 1969 the plaintiff ought to have instituted his claim within three (3) years from February 2003. The plaintiff launched the instant action against the first defendant on 6 December 2010. Therefore, the plaintiff’s claim has become prescribed and the plaintiff is barred from pursuing same.

2. Moreover and in any event, the plaintiff is barred from proceeding with this action due to his failure to comply with the provisions of section 3 (2) (a) read with section 3 (3) (a) of the Institution of Legal Proceedings Against Certain Organs of State Act.”

It is first defendant’s prayer that I uphold the special pleas and dismiss plaintiff’s action costs.

[6] In response to the abovementioned pleas, it is contended on behalf of the plaintiff that both special pleas have no merit in that:

1. Prescription only runs after the claimant has attained majority. In this case plaintiff became a major in 2007, having been born on 22 January 1986.

2. That the requisite notice in terms of the Institution of Legal Proceedings Against Certain Organs of State was given. That there was therefore compliance with section 3 (2) of the Act.

A copy of the letter of demand in this regard could not be produced because it was destroyed when the offices of plaintiff’s attorneys bunt down. The evidence of Mr. Hymie Zilwa, plaintiff’s attorney was adduced in this regard.

[7] Regarding the limitation of proceedings against certain organs of state, Section 3 of the Act provides that:

“(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 to 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.

(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 acquired such knowledge as soon as he or she or it could have

acquired it by exercising reasonable care, unless the organ of state willfully 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.

(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 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.

(c) If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal proceedings in question, on such conditions regarding notice to the organ of state as the court may deem appropriate.”

[8] I have already sketched he path that the matter followed, namely the Minister of Education having been sued initially and later the substitution of the Minister of Education for the MEC for Education, Eastern Cape. As I understand plaintiff’s agreement, it is that the requisite notice was served on the Minister of Education because the action proceeded on the same papers and there was no need for another statutory notice after the substitution. Something needs to be said about the said substitution although this is not an issue that is serving before me per se, having been dealt with by Mageza AJ. In that application the MEC for Education, Eastern Cape, sought to have the delivery of plaintiff’s amended particulars of claim substituting the Minister of Education by the MEC for Education, Eastern Cape Province, declared an irregular step. The

application was dismissed on the basis that an incorrect procedure was followed in complaining about the substitution by means of an application in terms of Rule 30 (1) instead of objecting by way of a special plea. In the notice to amend particulars of claim, which in essence was a notice to substitute the MEC for Education, Eastern Cape, for the Minister of Education, plaintiff seeks to delete paragraph 2.1 and 2.2 of his particulars of claim which refer to the Minister of Education with the following:

“2.1 First defendant is the Member of Executive Council for Education, Eastern Cape Province, who is sued herein his capacity and as the Member of Executive Council bearing responsibility and vicarious liability for their actions of all educators within the Eastern Cape Province whilst acting within the course and scope of their employment as such.”

All other particulars remained the same, including the allegation that:

“Plaintiff has complied with the legal requirements of duly demanding payment of damages in terms of Act number 40 of 2002 prior to the institution of this action.”

This notice of intention to amend is dated 16 November 2010. If I understand plaintiff’s case correctly, it is that this claim and or notice was issued to the Minister of Police. Hence in his evidence Mr. H Zilwa testified that attempts to obtain the said notice from the National Office of the Police Department failed. It would appear that no notice in terms of Act 40 of 2001 was given to the present defendant (MEC for Education). For provisions of Section 3 see paragraph [7] supra.

Section 4 of the said Act provides for the service of the said notice and states:

“(1) A notice must be served on an organ of state by delivering it by hand or by sending it by certified mail or, subject to subsection (2), by sending it by electronic mail or by transmitting it by facsimile, in the case where the organ of state is-

(a) a national or provincial department mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation 103 of 1994), to the officer who is the incumbent of the post bearing the designation mentioned in the second column of the said Schedule 1, 2 or 3 opposite the name of the relevant national or provincial department.”

In terms of Schedule 1 to the Public Service Act 103 of 1994 – the notice of intended legal proceedings must be sent to Head of the Education Department. It would appear that the plaintiff was only alerted to the fact that he has sued the wrong defendant in June 2008 when the Minister of Education pleaded that he was not vicariously liable for the actions of the second defendant and averred that the MEC for Education, Province of the Eastern Cape was. So if according to Mr. H Zilwa, their offices burnt down in July 2008, it stands to reason that at that time, the plaintiff was pursuing his claim against the erstwhile first defendant, the Minister - and only sought to substitute him in May 2010. No notice of intended proceedings could have been sent to the MEC before July 2008. This in my view is in keeping with plaintiff’s counsel’s submission that there was no need to serve a second notice on the MEC because one had been served on the Minister. This in my view is proof

on a balance of probabilities that no such notice was served as provided for by Section 3 (1) and (2) of Act 40 of 2002 read with Schedule 2 to the Public Service Act on the MEC. Even though Section 3 (4) provides for an application for condonation of failure to serve a notice in terms of Section 2 (a), no such application was made by the plaintiff in this matter. The failure is also not condoned by the first defendant. For these reasons first defendant’s special plea in this regard stands to be upheld and is so upheld.

[9] In my view, it is not necessary to deal with the second leg of the first defendant’s special plea, namely that plaintiff’s

claim has prescribed. I did not understand first defendant to be pursuing on this special plea. This after it was shown by the

plaintiff that prescription only started running after he had attained majority in 2007. However the special plea that has been

upheld disposes of the matter.

[10] In the result:

First defendant’s special plea relating to non-compliance with Section 3 of the Institution of Legal Proceedings Against Certain Organs of State is upheld with costs.

_______________

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Plaintiff : Mr. Zilwa

Instructed by : XM PETSE INCORPORATED

Suite 445, 4th Floor

Development House

York Road

MTHATHA

Tel.: 047 – 531 1572

Ref.: MT000: Mr. Vika/ns

For the Defendant : Mr. M H Sishuba

Instructed by : THE STATE ATTORNEY

Broadcast House

94 Sissons Street

Fortgale

Tel.: 047 – 502 9900

Ref.: 1161/07-P5

Date Heard : 3 September 2012

Date Reserved : 3 September 2012

Date Delivered : 11 March 2014