National Commissioner of South African Polices Services and Another v Tsogile Foundation Security Services & Trading (Pty) Ltd (A54/17) [2019] ZAGPPHC 494 (19 September 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

APPEAL CASE NO.: A54/17

19/9/2019

In the matter between:

THE NATIONAL COMMISSIONER OF SOUTH

First Appellant

AFRICAN POLICE SERVICES

PROVINCIAL COMMISSIONER SOUTH AFRICAN

Second Appellant

POLICE SERVICES

and

TSOGILE FOUNDATION SECURITY SERVICES & Respondent

TRADING (PTY) LTD

JUDGMENT

VAN DER WESTHUIZEN, J

[1] This appeal concerns the dismissal by the court a quo of a special plea that relates to the alleged non-compliance on the part of the respondent in respect of the provisions of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act[1] (the Act).

[2] The proceedings in the court a quo commenced initially as motion proceedings in that the respondent brought an urgent application against the appellants for compliance with a tender awarded to the respondent by the appellants. The tender was for the rendering of security services at the Phalaborwa Accounting Police Stations and their clusters. The relief sought in the urgent application was for the payment of R2 434 142.59 (two million. four hundred and thirty four thousand, one hundred and forty two rand and fifty nine cents) within seven days of the grant of that order, together with a cost order. The amount prayed for was for payment of rendering of security services in terms of the said tender.

[3] The appellants opposed the urgent application and filed an answering affidavit.

[4] The urgent court found that there were material disputes of fact and referred the matter for the hearing of oral evidence on those issues. This order was granted on 2 November 2010.

[5] On 30 April 2013 Kubushi, J., dismissed a point in limine relating to alleged non- joinder of the Minister of Police.

[6] Tuchten, J., on 13 August 2013, rescinded the order of the urgent court and referred the matter to trial.

[7] The required declaration was served and filed on 13 September 2013 and the amended plea (incorporating the special plea under discussion) was served and filed on or about 25 April 2014. The said amended plea referred to and recorded an alleged non­ compliance with the provisions of section 3 of the Act. The appellants, as defendants pied that the respondent's case as pied in the declaration, was one for payment of damages. Consequently, the respondent was obliged to comply with the requirements of section 3 of the Act.. The respondent replicated compliance with section 3 of the Act.

[8] A number of pre-trial conferences were held between the parties. At the one held on 8 April 2015, the appellants confirmed that they persisted in relying upon the special plea of non-compliance with the provisions of section 3 of the Act. That was the status of the matter when it came before Jansen, J, on 14 April 2015.

[9] By agreement between the parties the special plea was to be decided upon the pleadings and no viva voce evidence would be led in that respect.

[10] The court a quo found, that having regard to the history of the matter, and in particular the various court appearances where orders were granted, the appellants "knew exactly what the plaintiff's cause of action was and never argued in limine that the requisite notice period prescribed by the Act, had not been served”. It is this finding that Jed the court a quo to find that the appellants "had waived any reliance on section 3(1) and (2) of the Act". The court a quo held that the point of non-compliance with the provisions of section 3 of the Act had become academic at the stage when the matter came before the court a quo. The court a quo held that the special plea should be dismissed on that score. The court a quo however considered the merits and made findings regard thereto.

[11] It is to be noted that the respondent did not plead waiver of a reliance on the requirements of section 3 of the Act as is required in law.[2] The court a qua found mero moto that waiver applied. It is trite that the defence of waiver is to be pied and proven by the party that relies on. that defence. In this respect the court a quo clearly erred and that finding stands to be set aside.

[12] The finding of waiver stands to be set aside for a further reason as will appear below.

[13] The crucial issue to be decided turns upon the interpretation to be afforded to a letter by the respondent itself, dated 13 May 2009, and the letter by its attorney dated 4 August 2009.

[14] On 13 May 2009 the respondent, on its own letterhead, addressed a letter to the appellants. That letter records the award of the tender to the respondent and then the letter proceeds to terminate the tender, so awarded. The letter further sets out the process that the respondent would follow. The relevant passage reads as follows:

"1. Tsogile foundation security services and training will approach Limpopo Provincial MEC for S.A.P.S for his/her intervention

2. Should we fail to get assistance from the MEC we will have no option but to approach the Limpopo Premier for the payment of our security officers and protection of our tender

3. Failure to get help from the Premier we will have no option but to approach the Supreme Court of South Africa for the Court Interdict to protect our companies (sic) rights and employees rights"

[15] The respondent's attorneys on 4 August 2009 addressed a letter to the appellants along the same lines. The relevant passage of the letter reads as follows:

"3.1 My client has a valid and legally binding contract with the SAPS to render security services on an agreed basis in the Phalaborwa area.

3.2 In fact, it did that for the month of May 2009 and is entitled to compensation ss is reflected in the invoices forwarded to the station commissioners in question.

3.3 Furthermore, my client is entitled to have the contract enforced for the remainder of the 3 years period as agreed upon.

3.4 Therefore, should my client not immediately be compensated for the services rendered during May 2009 and its position be restored based upon the existing contract referred to above, the High Court will be approached on an urgent basis for the necessary relief to protect my client's rights and interests in this regard. This will obviously lead to substantial legal costs which will also be recovered from you."

[16] On a purposive reading of the aforesaid quoted passages, it is clear that the respondent intended to insist upon compliance with the provisions of the tender and would apply to court for specific performance of the tender. The clear wording of the aforementioned two letters indicates that the respondent had no intention to claim damages but the purpose was to restore the awarded tender.

[17] Apart from enjoining with the appellants in discussions in respect of the apparent deadlock, no legal action was taken until late in 2010.

[18] An urgent application was launched on behalf of the respondent during November 2010. The respondent sought payment of an amount of R2 434 142.59 (two million, four hundred and thirty four thousand, one hundred and forty two rand and fifty nine cents) within seven days from the granting of the order. The amount claimed represented the amount payable in terms of the awarded tender for a period of 12 (twelve) months, less the amount already received by the respondent for the month of May 2009 being R221 285.69 (two

hundred and twenty one thousand, two hundred and eighty five rand and sixty nine cents). The demand for payment in the amount specified in the notice of motion of the urgent application is clearly for specific performance in terms of the tender. By then a year had

passed since the letter of demand for compliance with the tender had been sent by the respondent's attorneys.

[19] It is 'further gleaned from the founding affidavit that the respondent was advised to institute an action for damages. The relevant passage reads as follows:

"12.11 During December 20091 went to see my attorney, Mr Wagener, in respect of the lack of the South African Police Services to return to me regarding their breach of the agreement between the Applicant and the Respondent.

12.12 It was then decided to wait until after the festive season, and should we at that point in time not receive any report from Director Marais, we will most probably continue with the issuing of summons against the Respondent for damages sustained by the Applicant due to the breach of the agreement by the Respondent.

12.13 I again went to see my attorney, Mr Wagener during February 2010 regarding the matter. He then informed me that we need to issue summons against the Respondent to claim damages sustained by the Applicant."

[20] Due to an apparent lack of funds, the respondent was not in a position to instruct his attorney to commence with action proceedings for damages allegedly suffered.

[21] lt is to be noted that no breakdown of damages allegedly suffered as a result of the alleged breach of agreement between the parties is advanced in the founding affidavit. As recorded earlier. the amount claimed represents payment in terms of a tender for a period of 12 (twelve) months that had lapsed since the alleged breach. The respondent was apparently under pressure to compensate his employees for the period that had lapsed. The employees had approached the Commission for Conciliation, Mediation and Arbitration for relief in that regard. That was also the apparent premise for the launch of the urgent application, i.e. compliance with the terms of the awarded tender.

[22] It follows from the foregoing that the respondent again relied on specific performance as relief against the appellants. The notice of motion of the urgent application. read together with the founding affidavit, clearly supports that fact.

[23] At the time when the declaration was filed, there appeared to be a change of heart. The respondent in paragraph 10 of its declaration pleads as follows:

“10. Due to the wrongful cancelation and termination of the security services agreement the Plaintiff suffered damages for wages not paid due to breach of an employment contract with the security personal (sic) employed by the Plaintiff to perform the services at the various police station (sic) in Phalaborwa for a period of one year.”

[24] In paragraph 11.3 of the declaration , the respondent pleads as follows:

"11.3 The Plaintiff would earn profit each year from the 3 year contract, and the Plaintiff would suffer a loss of profit should the contract be terminated prior to the expiry of the 3 year contract.''

[25] The respondent gives a breakdown of each of the alleged categories of damages allegedly suffered and claims payment of an amount R4 320 983.55 (four million, three hundred and twenty thousand, nine hundred and eighty three rand and fifty five cents), constituting the damages allegedly suffered.

[26] It is gleaned from the quoted passages in the declaration, that the respondent for the first time seeks payment of damages allegedly suffered due to the termination of the awarded tender, and in fact so pleads.

[27] It follows from the two letters of demand referred to earlier read together with the notice of motion and the founding affidavit of the urgent application, that the respondent has the clear intention of restoring the awarded tender and keeping it in place. Until the declaration was filed, the respondent did not seek payment of damages allegedly suffered as a result of the termination of the awarded tender. The alleged breach on the part of the appellants was not accepted as a repudiation of the awarded tender from which damages may ensue.

[28] The court a quo's mero moto finding that the appellant's opposition to the urgent application for specific performance without raising the issue of non-compliance with the provisions of section 3 of the Act and the non-raising of that issue before Kubushi J, where a special plea of no-joinder was argued, constituted a waiver on the part of the appellants, is flawed and stands to be set aside.

[29] Furthermore, no facts were pleaded in the urgent application to support a finding that the appellants were aware of their rights to insist on compliance with the provisions of section 3 of the Act. No facts were alleged in the urgent application to support a finding that the appellants had waived those rights.[3]

[30] The finding of the court a quo, that the issue of section 3 of the Act had become academic, is flawed in view of the foregoing and stands to be set aside.

[31] The provisions of section 3 of the Act and its application in the present instance require consideration. Section 3 of the Act reads as follows:

"3. Notice of intended legal proceeding to be given to organ of state

(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 or its 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 the facts giving rise to the debt, but the 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; 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 creditors 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 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 unreasonable 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 my deem appropriate."

[32] It is common cause that the respondent did not apply for condonation nor for leave to institute legal proceedings against the appellants.

[33] The Act defines "debt" as follows:

"'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 law; 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

“

[34] In Thabani Zulu and Co (Pty) Ltd v Minister of Water Affairs and Another[4]it was held that the definition of "debt" in the Act is the ,.... liability of an organ of state to pay damages, arising from any cause of action.”[5]

[35] The concept "damage" (damages) is explained in Arendse v Badroodien[6]

It is the detriment or loss caused by the hurt or injury, whether physical or otherwise.[7]

[36] It follows in my view that the concept of "damages" as it appears in section 3 of the Act cannot be equated with the compliance with an obligation contained in a term of a contract.

[37] It would thus follow that a claim for specific performance of a term of a contract does not constitute a liability to pay "damages" as envisaged in section 3 of the Act.

[38] Accordingly, and in view of the finding above, that the letter of 4 August 2009 was a clear indication of an intention to seek specific performance in terms of the tender (as found by the court a quo), that letter does not comply with the requirements of section 3 of the Act. The court a quo clearly erred in that respect and the court a quo's finding that the said letter complied with the requirements of section 3 of the Act stands to be set aside.

[39] Furthermore, the letter of 4 August 2009 is clear and unambiguous.[8] No oral evidence is thus required to assist in interpreting the said letter. It thus follows in my view that the court a quo's finding that the appellants were obliged to lead oral evidence in support of their special plea is flawed and stands to be set aside. In any event, the parties agreed that the special plea would be decided on the papers before the court and that no oral evidence would be led.

[40] It follows that the appellant's special plea should be decided in their favour. The court a quo's dismissal thereof stands to be set aside.

[41] In my view, the appeal should be upheld.

I would uphold the appeal and set the order of the court a quo aside and substitute it with an order that the special plea is upheld with costs.

I propose the following order:

(a) The appeal is upheld;

(b) The court a quo's order dismissing the special plea regarding the noncompliance with the provisions of the Institution of Legal Proceedings against Certain Organs of State Act[9], is set aside and substituted with the following order:

"The defendants' special plea regarding the non-compliance with the provisions of the Institution of Legal Proceedings against Certain Organs of the State Act, No. 40 of 2002 is upheld with costs";

(c) The respondent is to pay the costs of appeal, such costs to include the costs consequent upon the employ of two counsel.

C.J VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

I agree

S.N.I. MOKOSE

JUDGE OF THE HIGH COURT

HUGHES J

[42] I have had the benefit of reading the judgment of the majority penned by my brother, Van Der Westhuizen, J. I agree that the appeal succeeds in respect of waiver raised by the court a quo mero moto which was not pleaded by the respondent. To this end, as this issue has been dealt with in the main judgment, I will address it in my judgment.

[43] Respectfully, I do not agree with the reasoning and the conclusion reached, in regard to, notification having been effected in terms of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act[10] (the Act}. With regard to this issue of compliance in terms of section 3 of the Act, I would have dismissed the appeal and reasons

therefore appear below.

[44] It is necessary to briefly set out the chronology of the events. On 31 March 2009, the appellants and respondent concluded a contract for the rendering of security services. The respondent was telephonically informed on 12 May 2009 that the contract had been terminated with immediate effect. Reason being, the National Commissioner had not placed the Provincial Government in funds. Consequently, the latter was not able to make payment in terms of the contract. The respondent was advised to immediately remove its entire security staff from the appellant's premises.

[45] It is trite that when instituting legal proceeding against an organ of state, written notification thereof must be effected to such organ. In this case the respondent submits that the letter of 4 August 2009 is the requisite notice. Portions of the relevant letter are set out in the main judgment.

[46] The parties did attempt to resolve the issues between them but to no avail. Thus, the respondent lunched an urgent application on 20 October 2009. In this urgent application the respondent sought payment of R2 434 142.59 (two million, four hundred and thirty four thousand, one hundred and forty two rand and fifty nine cents) payable within seven days. In paragraph 8 of the founding affidavit of the respondent the costs incurred in order to fulfil its o ligations in terms of the contract were set out. Extracted from the affidavit I tabulate the expenses as follows:

(a) Security for public liability at R7 000.00 {seven thousand rand) per month for a period of a year;

(b) Equipment for guards at R43 916.11 (forty three thousand, nine hundred and sixteen rand and eleven cents);

(c) Thirty three employees and two supervisors were contracted for a period of a year, which would be extended to a three year period based on performance. Due to the unilateral termination of the contract by the appellant these employees sued the respondent in both the court and the Commission for Conciliation, Mediation and Arbitration.

[47] Prior to the letter of 4 August 2009, the respondent transmitted a letter dated 13 May 2009. Same is mentioned above in the main judgment This correspondence not only sets out the award of the tender but also the fact that it was cancelled. It also reiterated the ‘exorbitant expenses' and 'salaries' the respondent had incurred to fulfil its obligations in terms of the contract. In addition, the respondent sought payment for the services it had rendered in May 2009. Importantly, it stressed that it would 'consider' attaining an interdict, if necessary, to protect its rights.

[48] Of relevance is the fact that the appellants undertook to pay for the services rendered by the respondents for the month of May 2009 in an amount of R221 285.69 (two ·hundred and twenty two thousand, two hundred and eighty five rand and sixty nine cents}. They effected payment in November 2009.

[49] As set out in the main judgment, the matter took its course. As at 13 August 2013 the matter was referred to trial, the respondent filed its declaration on 13 September 2014 and the appellant's amended their plea on 29 April 2014. Fortuitous, it is in the amended plea that the appellant raised, for the very first time as a special plea, the issue of non compliance with section 3 of the Act.

[50] Pertinently, in their special plea the appellants acknowledge that the proceedings instituted by the respondent are 'legal proceedings for the recovery of a debt'. As such they sought the requite notice in terms of section 3. They alleged that this notice had not been served and the time to do so had lapsed. The respondent in its replication dated 12 September 2014, stated that the letter of demand, is its letter of 4 August 2009 which the appellant confirmed receipt of on 5 August 2009.

[51] Before this court counsel for the appellant's emphasised that the issue before this court is, whether the respondent had complied with section 3 of the Act, in providing them with the necessary notice. I make mention that in the court a quo the parties agreed that the matter would be decided on the papers and that there would be no need to lead evidence.

[52] The main judgment states that the two letters, dated 13 May 2009 and 4 August 2009, respectively, if read in 'a purposive manner' clearly indicates that the respondent Intended to insist that the appellants comply with the tender and would apply for specific performance, and that the respondent had no intention in claiming damages. They contended that the demand for payment of the amount claimed in the urgent application was for specific performance. Respectfully I differ.

Background and Purpose of the Act

[53] Lewis, JA succinctly dealt with the background and purpose of this Act in Minister of Safety and Security v De Witt explaining as follows:

'... The Act was introduced to harmonise periods of prescription of debts owed by organs of State, and to make provision for a uniform requirement for the giving of notice in connection with the institution of legal proceedings. It repealed several statutes that had previously regulated proceedings against various State bodies such as the police and the defence force. And it came after a decision in the Constitutional Court- Mohlomi v Minister of Defence -which it held that s113 (1) of the Defence Act was unconstitutional since it made no allowance for failure timeously to notify the defence force of the intention to sue it, despite the circumstances.'[11]

[54] In the preamble of the Act we find, amongst others, reference to section 34 of the Constitution[12] , highlighting the fundamental right of access to the courts. Consequently, it is apparent th.at the Act seeks consistency of the

procedural requirements in litigation against a state organ, which must be in compliance with the Constitution. Therefore, a process

that is not arbitrary, operates fairly and strikes a balance between the rights of the plaintiff and the organ of state is sought. Such a process guarantees that there are procedures to ensure that state organs keep their affairs in order and that the courts are given power to condone non-compliance with procedural requirements by a plaintiff.[13] In ensuring fairness the Act ensue time limits, notices of intention to sue and provides for condonation for non­compliance. The legislature has ensured that no undue hardship is placed upon the plaintiff.

[55] In Mohlomi v Minister of Defence[14] the following explanation on the general purpose 'of section 3 was advanced by Didcott J:

‘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 getting embroiled in litigation at public expense, whether it ought to accept, reject or endeavour to settle them.'[15]

[56] Mogobodi v Member of the Executive Council for the Free State[16] reiterated the views expressed by both the Constitutional Court[17] and the Supreme Court of Appeal[18] regarding who the true benefactor of section 3 was. The interest protected is most definitely the state organ concerned, once notice

is given in terms of section 3, it conveniently assists that particular organ of state to conduct proper investigations into the

claim and decide whether to make a payment or defend the intended action.[19]

The applicable provisions of section 3

[57] It is trite that section 3 is peremptory, however, when seeking to establish compliance, section 3 must be read as a whole.[20] I conveniently set out the relevant on of section 3 below:

'....s 3(1)(a) provides that no legal proceedings for the recovery of a claim may be instituted against an organ of state unless the claimant has given written notice to such an organ of state of his or her or its intention to institute such legal proceedings. As previously stated, in terms of s (3)(2)(a) such

notice must be served on the organ of state within six months from the date on which the claim became due. That notice mu t, in terms of s 3(2)(b)(i) and (ii), briefly set out the facts giving rise to the claim, and such particulars as are within the knowledge of the claimant.’[21]

[58] Does the letter of 4 August 2009 constitute the respondent's notification for the recovery of a debt and its intention to institute the legal proceedings in question? The definition of debt is very wide, "'debt" means any debt arising from any cause of action:

' ...arises from delictual, contractual or any other liability, including a cause of action ...arises from any act performed ... or omission to do anything which should have been done...’[22]

In Vhembe District Municipality v Stewarts & Lloyds[23] the Supreme Court of Appeal affirmed that:

'... A debt is the liability of an organ of state to pay damages, arising from any cause of action'.[24]

[59] In my view, the respondent sought to pursue two claims in the letter dated 4 August 2009. The first being compensation for having rendered services in May 2009, in terms of the invoices submitted by the respondent. The secondly, it sought to inform the appellant, that it would protect its rights and interests arising out of the contract. In defining these claims, the first is for a loss already incurred for the month of May 2009 and duly computed by the invoices. This claim of May 2009 was eventually paid by the appellants in November 2009. The second claim for the loss as a result of the infringement of the respondent's rights and interests by cancelling the contract was computed and instituted on an urgent basis. This is borne out from the papers together with a reading of the matter as a whole.

[60] In the letter dated 4 August 2009 regarding the second claim, were the facts giving rise to this claim set out in particularity, within the knowledge of the respondent[25]? I concluded that the answer should be in the affirmative. This is so, since the particulars set out in the letter at that time were to the best of the respondent's knowledge, as is depicted in paragraph 3.4 of the letter. The urgent application quantified the loss, but that does not detract from the fa that the respondent notified the appellant's of its intention to protect its rights and interests arising from the cancellation of the contract. That is all that is required of the respondent in terms of section 3(2)(b)(i) & (ii) the Act.

[61] I now tum to deal with what the main judgment terms as 'purposive reading' of the two quoted passages as appear in paragraphs 14 and 15 above, that results in a conclusion 'that the respondent intended to insist upon compliance with the provisions of the tender and would apply to Court for specific performance of the tender’.... We are well aware that this so called intention to seek specific performance did not materialise as the urgent application was premised on two damages claims, as I have explained above.

[62] I have already addressed the purpose of the relevant provision above. I need to point out that the mistake in the main judgment is that entire letter of 4 August 2009, as a whole is not considered instead the focus is on specific paragraphs. Read in its entirety, as it should, it is apparent that the purpose of the notice had been achieved. It spelt out where and on what premise the claims were sought. This ought to have assisted the appellant's in its investigation, in order to accept, reject, or settle as is contemplated by the said provision.

[63] The fact that the appellant went down the wrong path and investigated how the contract was concluded, as submitted by the appellant's, and not what damages would arise from it unilateral cancelling the contract, is of no fault of the respondent. The appellant's choose that path, as that was in fact, the basis on which they terminated the contract, having concluded that the contract had not received the blessing from relevant quarters.

[64] As I have already indicated from the outset, I will uphold the appeal in respect of the issue of waiver only with costs for one counsel. I would dismiss the appeal of the appellant's special plea pertaining to the non-compliance with the provisions of section 3 of the Ad with costs. Such costs to include the costs of the appeal and that consequent to the employment of only one counsel.

W HUGHES

JUDGE OF THE GAUTENG HIGH COURT, PRETORIA

Appearances:

On behalf of Appellant: G I Hulley SC

T Hutamo

Instructed by:

The State Attorney, Pretoria

On behalf of Respondent: J GW Basson

Instructed by:

Thikhathali Mashika Attorneys

[1] Act 40 of 2002.

[2] See Laws v Rutherfurd 1924 AD 261, at 263; see also National Union of Metal Workers of South Africa v lntervalve (Ply) Ltd and Others 2015 (2) BCLR 182 (CC) at [60].

[3] Montesse Township & Investment Corporation (Pty) Ltd and Another v Gouws, NO and Another 1965 (4) SA 373 (A) at 381A-D.

[4] 2012 (4) SA 91 (KZN) at 96B-97D.

[5] Ibid at 97A.

[6] 1971 (2) SA 16 (C) at 17G-H.

[7] See also Sandton Town Council v ERF 89 Sandown E:xtension 2 (Pty) Ltd 1988 (3) SA 122 (A) at 123E.

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

[9] Act 40 of 2002.

[10] Act 40 of 2002.

[11] [2008] ZASCA 103; 2009 (1) SA 457 para 1.

[12] The Constitution of the Republic of South Africa, 1996.

[13] De Witt at para 2.

[14] 1997 (1) SA 124 (CC).

[15] Mohlomi at para 9.

[16] (122/2008) [2008] ZAFSHC 38 (13 March 2008) at para 7.

[17] Madinda v Minister of Safety and Security2008 (4) SA 312 (SCA) at para 7.

[18] Moise v Grutar Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women's Legal

Centre as Amicus Curiae) [2001] ZACC 21; 2001 (4} SA 491 (CC) at para10.

[19] Mogopodi supra at para 7.

[20] De Witt Supra at para 10.

[21] Mebaso· v National Commissioner of Police & Another (1222/2017) (2019) ZASCA 43 (29 March 2019) at 18

[22] Definition of 'debt' In the Act.

[23] Vhambe District Municipality v Stewarts & Lloyds [2014] 3 All SA 675 (SCA)

[24] Supra at para 13.

[25] Section 3(2)(b)(I) and (ii) of the Act.