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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 5380/2016

DATE HEARD:  04/09/2018

DATE DELIVERED: 05/09/2018

In the matter between

NCEBA MAGADAZA                                                                                           PLAINTIFF

and

MKHULULI YAKA                                                                                     1^ST DEFENDANT

MINISTER OF POLICE                                                                             2^ND DEFENDANT

CONSTABLE BARNES                                                                            3^RD DEFENDANT

CONSTABLE GOLA                                                                                 4^TH DEFENDANT

 

JUDGMENT

ROBERSON J:-

[1] In this action the plaintiff claims damages from the four defendants arising from assaults allegedly perpetrated against him by the first, third and fourth defendants on 27 March 2016.  The first defendant is a private person.  The second defendant (the Minister) is sued in his capacity as the employer of the third and fourth defendants who allegedly acted in the course and scope of their employment with the Minister.

[2] In his particulars of claim the plaintiff alleged that he had complied with the provisions of ss 3 and 4 of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 (the Act).   Section 3 and s 4(1) provide:

“Notice of intended legal proceedings to be given to organ of state

3.(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 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 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 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 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 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.

Service of notice

4. (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: Provided that in the case of the Department of Police, the notice must be sent to the National Commissioner and the Provincial Commissioner of the province in which the cause of action arose, as defined in section 1 of the South African Police Service Act, 1995;

(b) a municipality, to the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998);

(c) a functionary or institution referred to in paragraph (c) of the definition of 'organ of state', to the chairperson, head, chief executive officer, or equivalent officer, of that functionary or institution, or where such functionary is a natural person, to that natural person;

(d) the South African Maritime Safety Authority, to the chief executive officer of that Authority appointed under section 22 of the South African Maritime Safety Authority Act, 1998 (Act 5 of 1998);

(e) The South African National Roads Agency Limited, to the chief executive officer of that Agency appointed under section 19 of The South African National Roads Agency Limited and National Roads Act, 1998 (Act 7 of 1998); or

(f) a person referred to in paragraph (f) of the definition of 'organ of state', to that person.”

[3] A letter dated 17 May 2016 from the plaintiff’s attorneys addressed to the National Commissioner of Police, which purported to be the notice given in compliance with the Act, was admitted as an exhibit.

[4] The Minister filed a special plea to the effect that the plaintiff had not complied with these sections, on the basis that no notice had been given.

[5] The Minister appeared to accept the onus of proving non-compliance with the Act and called two witnesses.

[6] The first witness was Captain Tracy Bartlett who is employed at the Legal Services division of the South African Police Service in East London.  She testified that in the course of her duties she receives civil claims against the Minister, opens files, instructs attorneys and investigates claims.  She has access to a data base containing details of any civil claim against the Minister.  When a letter of demand is received (the prescribed notice) an incident number will be allocated to the claim.  This incident number can only be generated at the National Office when a letter of demand is received.  When Captain Bartlett received the summons in this matter, she consulted the data base which contains details of civil claims and found no trace of the plaintiff’s name or an incident number.  No letter of demand was recorded on the system, which is referred to as the loss control system.  She acknowledged that she could not dispute that the letter was sent but said that it was not received by the National Office because it was not recorded in the loss control system.  She also acknowledged that she had not been hindered in her investigations of the claim even though no letter of demand had been received.

[7] The second witness was Mr Randhir Ramdhaya who is employed by the South African Post Office as a chief investigator, based in East London.  He investigates inter alia criminal matters and internal Post Office matters.  His evidence centred on a number of documents which were admitted as exhibits.  One of the documents was a Post Office generated document headed “List of Registered Letters.”  It contained a list of five names and addresses and the number of items posted was recorded as 5.  The customer’s signature was affixed under the number 5.  This figure of 5 was imposed over something which had been erased by Tippex.  Alongside the first four of these names and addresses was a “registered letter” sticker containing a registered letter number and the words “customer “copy”.  The fifth name and address on the list was “National Commissioner Private Bag X94 Pretoria 0001”.  The sticker alongside this name and address bore the number RD 989 792 223 ZA and the words “book copy”.  The date of posting of all these items was 25 May 2016.  The name and address of the sender of the items was recorded as Mandla Falithenjwa Inc, 39 Arthur Street, King Williams Town.  They are the plaintiff’s attorneys in this action.

[8] A further document was identified by Mr Ramdhaya as a carbon copy of the list of registered letters.  It bore the same number at the right hand foot of the document as that on the original, namely 701248.  Mr Ramdhaya said that the carbon copy was completed contemporaneously with the original.  The carbon copy was identical to the original except that the fifth name and address was not included.  The stickers alongside the four items were “book copy” stickers.  The number of items recorded on the carbon copy was 4 and the customer’s signature was affixed under the number 4.  Mr Ramdhaya explained that the original list is given to the customer at the time the letters on the list are posted, and the carbon copy is retained by the Post Office.  He said that the fifth name and address could only have been added at a later stage and could not have been added by a Post Office official.

[9] It was pointed out to Mr Ramdhaya in cross-examination that the signature of the accepting officer at the Post Office on the original list of registered items posted on 25 May 2016 differed from that on the carbon copy.  He explained that sometimes the signature on the carbon copy is not clear and officials are instructed to sign the copy.  The carbon copy does contain an original signature imposed over a carbon copy signature.  

[10] With regard to the stickers, Mr Ramdhaya said that the “customer copy” stickers are used for the original list of registered letters, and “book copy” stickers are used for the carbon copy.  Depending on the number of registered items a customer posts, some customers are designated as “Bulk” customers.  These customers are given a book containing forms on which to complete the list of registered items which they can complete in advance before posting, thus saving time.  They are also given a set of both types of stickers.  Mr Ramdhaya was unable to say if the plaintiff’s attorneys were bulk customers.

[11] Mr Ramdhaya was further referred to a track and trace report from the Post Office, relating to an item with reference number RD 989 792 223 ZA.  Mr Ramdhaya explained that this document recorded the history of the item as follows:  it was posted at King Williams Town Post Office on 5 February 2016; it was forwarded to the East London Post Office on 8 February 2016; the first notification to the recipient was sent on 9 February 2012; the recipient address would have been in East London; the item was returned by the East London Post Office to the King Williams Town Post Office on 11 April 2016 and ended its return journey to King Williams Town Post Office on 12 April 2016.   There was no indication in this track and trace report that the item ended up in Pretoria.  A further document, which Mr Ramdhaya referred to as a dispatch bill from King Williams Town Post Office to East London Post Office, reflected that item RD 989 792 223 ZA was dispatched on 7 February 2016.

[12] Mr Lindile Falinthenjwa is a Director of the Plaintiff’s attorneys.  He testified that his firm is not a bulk customer of the post office.  In his office, after a letter is signed by the attorney, it will be taken by a secretary to the post office and handed to a post office official who will complete the list of registered letters and hand the original to the secretary.  This is what happened in the present case.    When the secretary returns with the original list it will be annexed to the copy of the letter which has been posted.  The original list would satisfy him that the letter had been posted.  In this particular case he noticed that Tippex had been used on the list but concluded that nothing was wrong.  He was unable to explain the use of Tippex on the original list.  With regard to the difference in the number of items reflected on the original list and the carbon copy, he said he did not understand why this was so but that all the items were posted on the same day.  He agreed that he was puzzled by the alteration to the original list.

[13] Mr Falinthenjwa found it mystifying that the track and trace report reflected that the item was posted initially on 5 February 2016, when the cause of action only arose on 27 March 2016.  When it was pointed out to him in cross-examination that the track and trace report reflected that the letter never reached Pretoria, he had no comment.

[14] I agree with the submission by Mr Rugunanan, who appeared for the Minister, that Captain Bartlett and Mr Ramdhaya were credible witnesses.  They made a good impression and conceded certain aspects which were put to them in cross-examination.  I regard them as impartial and honest.

[15] In my view the only plausible inference to draw from Mr Ramdhaya’s evidence was that the original list of items posted on 25 May 2016 was interfered with after it was returned to the plaintiff’s attorneys, namely by the addition of the fifth name and address.  Further, this must have happened at the plaintiff’s attorneys’ offices, because they retained the original list after it was given to their employee by the post office official at the time the items were posted.  There can be no other plausible explanation for the difference between the original list and the carbon copy.  Mr Falithenjwa offered no explanation for the difference and the member of his staff who posted the items on 25 May 2016 did not testify.  It is highly improbable that a post office official would alter the original list.  For that to happen it would have had to be returned to the post office by the attorneys.  Mr Falithenjwa did not say that that is what happened.  Further what possible interest or motive would a post office official have in altering the document?  The notion of alteration by a post office official is highly improbable.

[16] I do not think that this finding is undermined by the fact that a “book copy” sticker was affixed to the original list as opposed to a “customer copy” sticker.  That fact does not displace the improbability of a post office official altering the original document.  Mr Ramdhaya did say that sometimes customers are given a set of both types of stickers.  The difference in signatures of the post official on the original list and the carbon copy was in my view adequately explained by Mr Ramdhaya.  One can see on the carbon copy that an original signature has been superimposed over the carbon copy signature which is somewhat faint.

[17] A further difficulty for the plaintiff is the track and trace report.  Mr Falithenjwa offered no evidence to contradict Mr Ramdhaya’s explanation of the track and trace report.

[18] One is left then with a letter apparently posted twice on different dates, which cannot have happened.  In my view the inference to be drawn from the evidence is that the letter was never posted on 25 May 2016 and in fact no letter in compliance with the Act was ever posted at all.  My finding that the alteration to the original list was made at the attorneys’ offices supports this conclusion.  The fifth name and address were a fiction.  The track and trace report supports this conclusion.  No letter was destined for Pretoria.  Captain Bartlett’s evidence supports this conclusion.  Although she only consulted the data base, her evidence that the letter of demand was not reflected on the data base carries weight and supports the conclusion that no letter of demand was sent at all.

[19] Mr Mapoma, who appeared for the plaintiff, submitted that because there was no prejudice to the Minister in investigating the claim, the special plea should not succeed.  If this had been an application for condonation that argument would have carried some weight.  However the requirement for notice exists in the Act and if a defendant raises non-compliance, which has happened in this case, a plaintiff has the opportunity to apply for condonation.  One cannot disregard the provisions of the Act.

[20] I am thereof the view that the special plea should succeed.  The effect of this decision, as was said by Mbenenge ADJP, as he then was, in Mfundisi Gcam-Gcam v Minister of Safety and Security, Mthatha High Court case number 187/2011, judgment delivered on 12 September 2017, at paragraph [23], is that the plaintiff is barred from proceeding with the action against the Minister without first seeking and obtaining condonation in terms of s 3 (4) of the Act.

[21] My conclusion that the original list was altered at the attorneys’ offices has serious consequences.  As Mr Rugananan submitted, this was done to circumvent the provisions of the Act.  The alteration was made in order to represent that there had been compliance when in fact there had not been compliance. There was therefore dishonesty involved in this false representation. Why the plaintiff did not just apply for condonation escapes me.  This brings me to the question of costs.  I raised the question of who should be liable and why the plaintiff’s attorneys should not be liable.  Mr Mapoma resisted this option, submitting that it is not known that the list was altered at the attorneys’ offices.  However I have made a finding in this regard.  I think in the circumstances it would be unfair to order the plaintiff to pay the costs.  Whether or not he was complicit in the misrepresentation, of which there is no evidence, does not alter the conclusion that the alteration to the original list was effected while it was in the possession of the attorneys.

[22] In Erasmus Superior Court Practice at E12-27 the authors state (footnotes omitted):

“The general rule is that a person suing or defending in a representative capacity may be ordered to pay costs de bonis propriis if there is a want of bona fides on his part, or if he acted negligently or unreasonably.  No order will be made where the representative has acted bona fide; a mere error of judgment does not warrant an order of costs de bonis propriis.”

[23] In the present matter there was a deliberate attempt falsely to represent that notice had been given in terms of the Act.  Not only does this warrant a costs de bonis propriis order but a further order that such costs be on the scale as between attorney and client.

[24] The following order will issue:

[24.1]  The second defendant’s special plea is upheld with costs.  Such costs are to be paid by Mandla, Falithenjwa Incorporated de bonis propriis on the attorney and client scale.

[24.2]  The Registrar is requested to forward a copy of this judgment to the Cape Law Society.

 

 

______________

J M ROBERSON

JUDGE OF THE HIGH COURT

 

Appearances:

For the Plaintiff: Adv S X Mapoma, instructed by Mandla, Falithenjwa Incorporated, c/o Mgangatho Attorneys, Grahamstown

For the 2nd Respondent: Adv S Rugunanan, instructed by Enzo Meyer Attorneys, Grahamstown

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