Tuwaduvhani and Another v Obgechie (A346/2017, 6081/2015) [2018] ZAGPPHC 331 (11 May 2018)

Tuwaduvhani and Another v Obgechie (A346/2017, 6081/2015) [2018] ZAGPPHC 331 (11 May 2018)

The court held that the Magistrate's Court had jurisdiction to grant condonation under section 3(4)(a) of Act 40 of 2002, as pending proceedings between the creditor and the organ of state are not a prerequisite. The respondent only became aware of the second appellant's involvement as an organ of state liable for the debt upon receipt of the affidavit in January 2017, and there was no evidence to contradict this. Therefore, prescription had not run against the respondent prior to that date. The joinder argument was rejected, as the application for condonation did not seek to join the second appellant as a defendant but merely cited it as a respondent for the purposes of the condonation...

Citation
[2018] ZAGPPHC 331
Parties
Appellant: Steven Nthambeleni Tuwaduvhani; Appellant: Minister of Police; Respondent: Emmy Ugo Obgechie
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 May 2018
Case Number
A346/2017, 6081/2015
Procedural Posture
Civil Appeal / Appeal Against Magistrate's Court Order Granting Condonation Under S 3(4) of Act 40 of 2002
Outcome
Appeal dismissed with costs.
Judges
AM Heystek, HJ de Vos
Legal Topics
Institution of Legal Proceedings Against Organs of State, Condonation, Joinder, Prescription, Magistrates Court Jurisdiction
Civil Procedure Administrative Law Institution of Legal Proceedings Against Organs of State Condonation Joinder Prescription Magistrates Court Jurisdiction

Case Brief

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Parties

Steven Nthambeleni Tuwaduvhani

Appellant

Minister of Police

Appellant

Emmy Ugo Obgechie

Respondent

Procedural Posture

Civil Appeal / Appeal Against Magistrate's Court Order Granting Condonation Under S 3(4) of Act 40 of 2002

Legal Issues

  1. 1 Whether the respondent's failure to serve notice under section 3(1) of Act 40 of 2002 within the prescribed period should be condoned.
  2. 2 Whether the Magistrate's Court had jurisdiction to grant condonation under section 3(4)(a) of Act 40 of 2002.
  3. 3 Whether the respondent's claim against the second appellant had prescribed under the Prescription Act.

Ratio Decidendi

The court held that the Magistrate's Court had jurisdiction to grant condonation under section 3(4)(a) of Act 40 of 2002, as pending proceedings between the creditor and the organ of state are not a prerequisite. The respondent only became aware of the second appellant's involvement as an organ of state liable for the debt upon receipt of the affidavit in January 2017, and there was no evidence to contradict this. Therefore, prescription had not run against the respondent prior to that date. The joinder argument was rejected, as the application for condonation did not seek to join the second appellant as a defendant but merely cited it as a respondent for the purposes of the condonation...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.