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REPUBLIC OF SOUTH AFRICA

OFFICE OF THE CHIEF JUSTICE

(GAUTENG DIVISION. PRETORIA)

18/9/15

CASE NO:  32259/14

IN THE MATTER BETWEEN

LJ JORDAAN                                                                                                   Plaintiff/Applicant

and

MINISTER OF POLICE                                                                         Defendant/Respondent

JUDGMENT

LEGODI J

HEARD ON: 08 SEPTEMBER 2015

JUDGMENT HANDED DOWN: 18 SEPTEMBER 2015

[1] The question in this case is whether a letter dated 10 May 2010 addressed to the Minister of Safety and Security in Cape Town constituted a proper statutory notice of institution of an action against an organ of state in terms of section 3 of the Act 40 of 2002 ("the Act). In the alternative, the question is whether a case for condonation of the late filing of such a notice has been made.

[2] As a background, on 10 December 2009 the plaintiff Mr Lodewickus Johannes Jordaan was arrested without a warrant on charges of contravention of the provisions of the Sexual Offences and Related Matters Act no. 32 of 2007, in particular for contravention of section 9 thereof as it appears from the face of the police docket. On 11 December 2009 he appeared in Groot Brankrivier Magistrates court when charges were withdrawn. On 14 May 2010 the plaintiff delivered by registered post notice of his intention to institute legal proceedings. The letter dated 10 May 2010 was addressed to the Minister using the Cape Town address. Subsequent thereto, another letter as contemplated in section 3 of the Act was issued on 6 June 2011 and addressed to the Minister of Safety and Security in Pretoria and summons were issued and served thereafter. The defendant filed a special plea.

Letter of 10 May 2010

[3]  This letter was posted on 14 May 201O as per certificate of posting annexed to the papers. The defendant in its answering affidavit takes a swipe at this letter/notice as follows:

"13.1 It is specifically denied that annexure "LJ1" to the founding affidavit was properly addressed to and or served on the National Commissioner of the South African Police Services and it is further more denied that this purported letter was ever received by the then Commissioner of the South African Police Services and or the Western Cape Provincial Commissioner's office.

13.2 This Honourable Court's attention is drawn to the fact that the National Commissioner of the South African Police Services has no address in Cape Town and the address allegedly used is not even the address of the Western Cape Provincial Commissioner of the South African Police Service. The provincial Commissioner's address is P/Bag X94004, Cape Town, and not Private Bag X 9080 as indicated on annexure "LJ1".  .

13.3 Any  service  of a written notice  contrary to the peremptory  provisions  of section 4 of the Act cannot be regarded as compliance with the Act".

[4] In dealing with the challenge to the notice, it is necessary to capture the relevant portions of sections 3 and 4. Section 3 deals with notice of intended legal proceedings to be given to an organ of state.  Subsection (1) 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) ...

(i)

(ii)

(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)

(i)

(ii) "

[5] On the other hand section 4 deals with service of notice and subsection (1}(a) provides:

"(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 my 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 Services 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,

(b)    ...

(c) ...

(d) ...

(e) ...

(f) ..."

[6] The defendant is an organ of state which happens to be a national department referred to in Column 1 Schedule 1 under the Public Service Act and referred to in paragraph (a) of section 4(1). The National Commissioner of the South African Police Service is indicated in column 2 as an organ of state which must be served with a notice as contemplated in subsection (1)(a) of section 4. The quotation in paragraph 3 of this judgment is based on section 4.

[7] This was branded as a narrow interpretation of the definition of an organ of state and the essence of giving a notice within six months from date on which the debt became due as contemplated in subsection (2) of section 3. The main object, as I see it, is to ensure that matters against an organ of state are investigated as speedily as possible in order to avoid loss of evidence, information and or documents, particularly considering the fact that there is change of personnel in the public service on a daily basis. In other words, the purpose is to avoid prejudice to an organ of state.

[8] The intention of the legislature in directing that service of notice in terms of section 3(1) be effected on the National or Provincial Commissioner of Police, in the instant, is to avoid that kind of prejudice. It must have been envisaged by the legislature that the Commissioner will be able to launch as investigation as soon as possible as compared to the Minister.

[9]  There is no question that the defendant is an incumbent of an organ of state in the Department of Safety and Security. The real question is whether the notice effected on 14 May 2010 as per the letter of 10 May 2010 substantially complies with section 3(1)(a). All what is required of a creditor is 'to give an organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question'.

[10]  The manner of service as envisaged in section 4 should be seen as an ancillary to subsections (1)· and section 3. The question is whether proper compliance with the provisions of section 3 is nullified by failure to serve  the notice on the incumbent identified in column 2, despite the incumbent in column 1 having been timeously served with such a notice?

[11] In the present case, it is not denied that the notice as per the letter of 1O May 2010 was dispatched on 14 May 2010 to the correct address of the incumbent in column 1 Schedule 1 envisaged in section 4(1)(a) of the Act. Secondly, it is not denied that the Department had received the letter or presumed to have received it. What the defendant is contending is that such a notice must have been served on the National or Provincial Commissioner in Pretoria or Cape Town and that the address used is not of any of the Commissioners of the Police.

[12] Seeking to challenge the notice so served on the defendant and not on any of the defendant's commissioners without alleging that the defendant (the Minister) did not receive the notice, would not in my view, invalidate the notice simply because it has not been served on a Column 2 incumbent. It must be assumed that the defendant will not ignore a statutory  notice issued in terms of section 3 simply because it was served directly on it instead of having it served on the Commissioner. I therefore find that there has been substantial compliance with the requirements as contemplated in section 3.

[13] The finding must dispose of the opposition to the application. It is therefore not necessary to deal with the alternative relief, for condonation of the late service of section 3 notice. It suffices to mention that this would have been an appropriate case to justify the granting of the condonation.

[14] Consequently I hereby make an order as follows:

14.1         It is hereby declared that the plaintiff's notice dated 10 May 2010 and dispatched by registered post on 14 May 2010 substantially complied with the provision of Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002;

14.2          The defendant to pay costs of the application on a party and party scale.

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M F LEGODI

JUDGE OF THE HIGH COURT

FOR THE PLAINTIFF:                           ADV P A VENTER

INSTRUCTED BY:                                 VAN ZYL LE ROUX ATTORNEYS

                                                                        Block 3, 1^st Floor

                                                                        Monument Office Park

                                                                        71 Steenbok Ave.

                                                                        PRETORIA

                                                                        TEL: 012 435 9444

                                                                        REF: JW JOUBERT/397133

FOR THE DEFENDANT:                        ADV J BARNADT

INSTRUCTED  BY:                                 THE STATE ATTORNEY

                                                                        Salu Building

                                                                        316 Thabo Sehume Street

                                                                        PRETORIA

                                                                        TEL: 012 3091565

                                                                        REF: Ms J L De Lange

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