In the matter between:

CLIVE THOMAS 								Second Appellant 
KAIN JACOBUS STUURMAN 						Third Appellant

DANIEL MGQIBISA 								Fifth  Appellant
AUBREY NOLAN OOSTHUIZEN  						Sixth Appellant
CLAYTON PETERS 								Seventh Appellant 
COBURN DE BRUIN  							Eighth Appellant

JOHN THEODARE WILSON  						Ninth Appellant
CARLO WAYNE LUCAS  							Tenth Appellant 
XOLILE GLADILE 								Eleventh Appellant 
VANADENE VICTOR FISHER 						Twelfth Appellant

and

				JUDGMENT DELIVERED ON 09 MARCH 2011

CORAM: 						D H ZONDl J & E T STEYN J
JUDGMENT BY: 					D H ZONDl J
FOR THE APPELLANTS: 				ATT. J RAMAGES
INSTRUCTED BY: 					J RAMAGES ATTORNEYS & CONVEYANCES
FOR THE RESPONDENT: 				ADV. R JAGA
INSTRUCTED BY: 					STATE ATTORNEY

DATE OF JUDGMENT: 				09 MARCH 2011

			

IN THE HIGH COURT OF SOUTH AFRICA 
			(WESTERN CAPE HIGH COURT, CAPE TOWN)

REPORTABLE 
CASE NO: A370/10
In the matter between

and

ZONDl, J 

Introduction

[1] The main issue presented in this appeal concerns the interpretation of section 3(4)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002 ("the Act") and in particular whether the magistrates court has jurisdiction to condone non-compliance with the provision of section 3(2)(a) of the Act.

[2] It is the appellants' case that the magistrates court's jurisdiction to hear and grant applications condoning non-compliance with the provision of section 3(2)(a) has not been excluded either expressly or implicitly. On the other hand the respondent contends that the magistrates court does not have jurisdiction to entertain condonation applications brought under section 3(4)(a) of the Act unless there is a related pending action between the parties in the magistrates court.

Background

[5] IT is common cause that the respondent refused to consent to the institution of the intended legal proceedings and its refusal prompted the appellant to bring an application for condonation in terms of section 3(4)(a) of the Act.

[6] On 15 March 2010 the appellants issued summons against the respondent for damages they allegedly suffered as a result of the unlawful conduct of the respondent's employees. It appears from the sheriffs returns of service that the summons was served on 15 March 2010 at about 15h20 at the respondent's place of employment being Room 915, 120 Plein Street, Cape Town, and also at 15 Alfred Street, Green Point at about 15h38. Prior to the issue and service of the relevant summons on the respondent, the appellants brought on or about 25 February 2010 an application for condonation in terms of section 3(4) of the Act in the Worcester Magistrates Court and which was set down for hearing on 15 March 2010 at 09h00. The respondent opposed the application. It is common cause that the summons had not been issued and served at the time of the hearing of the condonation application.

The Law

[10] Section 3 of the Act makes provision for the giving of notice of intended legal proceedings to organs of state. It provides as follows:

"(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-

(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-

(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.

(iii)   the   organ   of state   was   not  unreasonably prejudiced by the failure.

[12] The learned Judge went on to say at paragraph 2:

[13] Section 3(4)(a) makes it clear that non-compliance with the provisions of section 3(2) may be condoned by a court having jurisdiction.

[16] If the meaning of the words using the above approach is clear then such meaning represents the intention of the legislature and the court may only depart from such meaning if it would lead to absurdity so glaring that it could have never been contemplated by the legislature, or where it would lead to a result contrary to the intention of the legislature as shown by the context or by such other consideration as the court is justified in taking into account.

[18] I say this for three reasons. First, section 165(1) of the Constitution vests judicial authority in the courts which in terms of section 166 includes the magistrates court. It follows therefore that in terms of section 3(4)(a) the magistrates court is competent to condone non-compliance with the provision of section 3 as long as it has jurisdiction on the main claim under the Magistrates' Courts Act 32 of 1944 or rules.

[25] After analysing the Act as well as its background and purpose the court concluded at paragraph 15 that:

"...where section 3(4)(a) says that a creditor may apply to a court having jurisdiction, the legislature must have intended to mean any court having jurisdiction over the main claim. That would include the magistrates' court."

[26] I agree entirely with the conclusion reached by Musi JP regarding the meaning of section 3(4)(a).

[30] The appellants' reliance on section 37(2) of the Magistrates' Courts Act is misplaced. In my view section 37(2) has no application in the present case.

(2) Where the amount claimed or other relief sought is within the jurisdiction, such jurisdiction shall not be ousted merely because it is necessary for the court, in order to arrive at a decision, to give a finding upon a matter beyond the jurisdiction."

"A reading of this section makes it clear that a finding on the matter that is beyond the jurisdiction of the court must be necessary in order for the court to reach a decision on the main matter before it, which is within the jurisdiction. The cases cited in Jones & Buckle The Civil Practice of the Magistrates' Courts in South Africa vol 1 under a discussion of s 37(2) illustrate the point. It will not be necessary to make a finding on the condonation application in order for the magistrates' court to reach a decision on the appellant's loss of income claim. What s 37(2) envisages is an issue that is central to a determination of the merits of the case before the court, but which is beyond the jurisdiction."

[37] The provisions of rule 55(4)(a) upon which the appellants rely for the contention that the magistrates court has jurisdiction to hear the condonation application do not support the case they seek to advance. In the first place the new rule 55 came into operation on 8 October 2010 long after 15 March 2010. Rule 55(4)(a) clearly refers to interlocutory and other applications incidental to pending proceedings. It does not purport to enlarge the jurisdiction of the magistrates court so as to empower it to hear applications which it otherwise would not have been empowered to hear either in terms of the Magistrates' Courts Act or rules.

3(4)(a> the question of whether or not the magistrates court has jurisdiction over the main claim must be determined at the time of service of the summons.

The Order

ZONDI, J
I agree
STEYN, J