Pegma Thirteen Investments (Pty) Ltd v Free State Development Corporation (2681/2006) [2008] ZAFSHC 72 (18 September 2008)

Pegma Thirteen Investments (Pty) Ltd v Free State Development Corporation (2681/2006) [2008] ZAFSHC 72 (18 September 2008)

The court found that the Free State Development Corporation is an organ of state within the meaning of section 1 of Act No. 40 of 2002. This conclusion was based on the extensive governmental control exercised over the corporation by the Free State Provincial Government, particularly through the MEC for Tourism, Environmental and Economic Affairs, and the corporation's role in implementing public functions specified in schedules 4 and 5 of the Constitution. The corporation was established by provincial legislation to fulfil executive functions mandated by the Constitution, and its activities are closely aligned with governmental objectives such as economic development and poverty...

Citation
[2008] ZAFSHC 72
Parties
Applicant: Pegma Thirteen Investments (Pty) Ltd; Respondent: Free State Development Corporation
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 September 2008
Case Number
2681/2006
Procedural Posture
Civil Trial / Special Plea Adjudication
Outcome
The special plea is upheld; the plaintiff's claim is dismissed for failure to give notice as required by section 3 of Act No. 40 of 2002.
Judges
M H Rampai
Legal Topics
Organ of State Definition, Notice of Intended Legal Proceedings, Governmental Control, Public Function Test, Special Plea, Section 3 Act 40 2002
Civil Procedure Delict Administrative Law Organ of State Definition Notice of Intended Legal Proceedings Governmental Control Public Function Test Special Plea +1 more

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Parties

Pegma Thirteen Investments (Pty) Ltd

Applicant

Free State Development Corporation

Respondent

Procedural Posture

Civil Trial / Special Plea Adjudication

Legal Issues

  1. 1 Whether the defendant is an organ of state as contemplated in section 1 of Act No. 40 of 2002.
  2. 2 Whether the plaintiff was required to give written notice to the defendant in terms of section 3 of Act No. 40 of 2002 before instituting proceedings.
  3. 3 Whether the defendant's special plea should be upheld due to lack of notice.

Ratio Decidendi

The court found that the Free State Development Corporation is an organ of state within the meaning of section 1 of Act No. 40 of 2002. This conclusion was based on the extensive governmental control exercised over the corporation by the Free State Provincial Government, particularly through the MEC for Tourism, Environmental and Economic Affairs, and the corporation's role in implementing public functions specified in schedules 4 and 5 of the Constitution. The corporation was established by provincial legislation to fulfil executive functions mandated by the Constitution, and its activities are closely aligned with governmental objectives such as economic development and poverty...

Court Disposition

The special plea is upheld; the plaintiff's claim is dismissed for failure to give notice as required by section 3 of Act No. 40 of 2002.

Orders

  • The defendant's special plea succeeds.
  • The plaintiff is directed to pay the costs occasioned by the adjudication of the original dispute.