THE HIGH COURT OF SWAZILAND
the matter between:
Applicant : MR P.R. DUNSEITH
Respondent : MRS T. NKONYANE
is an application for the grant of special leave to the Applicant to
sue the Respondent in terms of the provisions of Section 4 (1) of the
Limitation of Legal Proceedings Against the Government Act 21 of
1972, (hereinafter referred to as "the Act").
4 (1) of the Act reads as follows: -
High Court may, on application by a person debarred under section 2
(1) (a) from instituting proceedings against the Government, grant
special leave to him to institute such proceedings if it is satisfied
has a reasonable prospect of succeeding in such proceedings;
Government will in no way be prejudiced by reason of the failure to
the demand within the stipulated period; and
regard to any special circumstances he could not reasonably have
served the demand within such period.
Applicant states in his Founding Affidavit that he is the lawful
owner of a vehicle bearing registration number B V G 560 MP, which
was seized by the Royal Swaziland Police for investigation from an
unmentioned garage where it was to undergo repairs. The Police took
the said vehicle to Lobamba Police Station. The said vehicle was
whilst in the care and custody of the Police destroyed by fire,
allegedly caused by the negligence of the Police who did not take
proper precautions to clear proper firebreaks and safeguard the
vehicles in their custody.
Applicant further states that when he learned about the damage to his
vehicle, he went to the Police Headquarters to lodge a claim and was
advised by a Police Officer that no claim would be accepted without a
South African Police clearance. The Applicant contends further that
he spent a number of weeks trying to obtain the said clearance in
South Africa and his efforts were humstrung by the absence of the
vehicle. On reverting to the Police Headquarters, the Applicant did
not obtain a satisfactory answer regarding the claim until he
obtained services of an attorney towards the end of December, 1999.
Applicant's attorney sent a letter of demand, which was correctly
regarded, to have been transmitted after the statutory period set out
in Section 2 (1) (a) of the Act, hence the Applicant seeks the
Court's special leave in order to file the demand.
addressing the requirements of Section 4(1) above, the Applicant
states that the vehicle was destroyed by the negligence of the Police
as aforesaid whilst the said vehicle was in their custody and care.
The Applicant states in this regard that the Police have no defence
to the claim. Regarding (b), the Applicant contends that the delay on
his part was minor and further alleges that the Police have full
access to facts and events giving rise to the claim. Regarding the
requirement in (c), the Applicant's contention is that he was misled
by the Police by giving him wrong advice regarding the lodging of a
claim and as a result, he lost valuable time following the advice
obtained from the Police.
was his further contention that he was personally unaware of the time
constraints for making demand and
out further that the Police never formally advised him of the fact of
the damage to his vehicle by the fire. According to the Applicant, he
is employed in South Africa and comes to Swaziland on weekends only
and he argued that this fact militated against him obtaining the
facts relating to the destruction of the vehicle and also in
consulting with his attorney.
Respondent raised points of law in terms of the provisions of Rule 6
of the High Court Rules. The Respondent's contentions are three fold
the Applicant's cause of action lies with Qobonga Garage,
Sidwashini, which the Applicant contracted with and gave custody of
the motor vehicle in question.
the Applicant has not averred the special circumstances as required
by Section 2 (1) (c) to entitle him to the grant of the relief. The
Respondent further alleges that the Applicant has hardly complied
with the requirements of Section 4 of the Act aforesaid.
the Applicant's supplementary Affidavit by which the Applicant
attempted to comply with the requirements of the Act does not
supplement the Founding Affidavit but introduces new facts.
Respondent further annexed affidavits by certain Police Officers
whose import is to state that the Applicant's vehicle was towed by
Leites Motors at the behest of the owner of Qobonga Garage to the
Police Station after it had been involved in a collision which
rendered it beyond economical repair.
will now proceed to analyse the Applicant's Affidavits to ascertain
whether the requirements of Section 4 have been met. The object of
this Act is clearly to protect the Government against prejudice which
might be occasioned to it by reason of a delay in acquainting it with
an intended claim for damages.
reasonable prospects of success.
the heads of argument, the Respondent argued that the Applicant has
no reasonable prospects of success because under the action legis
aquilae, a claim for damages ex delicto does not lie against a bona
fide possessor as his good faith protects him. In this regard, the
Court was referred to Silberberg and Schoeman "The Law of
Property", Butterworth, 2nd Edition 1983, 299 and the case of
MORABANE v BATEMAN 1918 AD 460 at 465-6.
is good law which is however cited out of context. The authors and
the case refer to a situation where a person acquires possession of
property oblivious to the fact that it is stolen and therefore
becomes a bona fide possessor of the same. The person is adjudged to
be insulated against claims exdelicto by his good faith. This is
inapplicable in this case.
Respondent further alleged that there is no debt due to the Applicant
by the Respondent as envisaged by the Act. The Respondent contends
therefore that the Applicant does not fall within the category of
persons debarred under Section 2 (1) (a). This contention flies in
the face of a decision of this Court by Hannah C.J. (as he then was)
in WALTER SIPHO SIBISI v WATER AND SEWERAGE BOARD AND ATTORNEY
GENERAL CASE NO...504/87 (unreported). In that judgement, Hannah C.J.
held and it was agreed by the parties that the word "debt"
occurring in the Act must be given the widest possible meaning and
includes a claim for damages. I respectfully endorse that view as
correct because the strict interpretation of the word "debt"
in the Act would lead to grave injustices and would subvert
my view, from the facts alleged the Applicant has reasonable
prospects of success, against the Government. Seeking leave against
the Government does not in any way mean that no proceedings can be
instituted by the Applicant against the other parties mentioned by
the Respondent. Should these not be cited in any future proceedings,
the Respondent would be at large to haul those before Court by
employing the provisions of Rule 13.
the Applicant alleges is that its vehicle was taken by and kept by
the Police and whilst still in their custody and care, the said
vehicle was destroyed by fire which the Police took no reasonable
steps to prevent. What is required of an Applicant in such cases is
not to show that he has an answerable claim as in one for Summary
Judgement but to show that his claim prima facie caries a reasonable
prospect of success. This is designed to
that spurious and vexatious and hopeless claims are not lodged after
the respective periods set out in Section 2 (1). To hold otherwise
would require the Court to conduct a trial before the actual trial
which is thus obviated by the Court being satisfied on the
Applicant's papers that prospects of success are reasonable. At the
actual trial, the Defendant may be successful. I am satisfied that
this requirement has been satisfied.
Prejudice to the Government
Applicant's case is that the Respondent will not be prejudiced by the
grant of special leave in that the Application was out of time by a
few weeks. The Applicant contends further that the Applicant has
access to all the information it may need to defend its claim. I
agree. All witnesses, records and documents should, regard being had
to the time when the incident arose and the time when the demand was
made be accessible to the Defendant. It has not been suggested that
these are either destroyed or unavailable. Mrs Gamedze was at pains
to point out any prejudice without success. It is my considered view
therefore that the Applicant must succeed on this requirement as
special circumstances averred by the Applicant include the following
- wrong advice from the Police regarding the lodging of the claim,
which resulted in a loss of valuable time; that the Applicant works
in South Africa and was not immediately aware of the damage to his
vehicle and that when he eventually became aware, and obtained advice
from his attorney, the ninety day period had already lapsed.
facts in my view constitute special circumstances, particularly the
fact that the Respondent is resident in South Africa and only returns
to Swaziland on weekends and holidays. The Police also did not help
because they should have referred any enquiries to their Legal
Advisor who would have given sound advice to the Applicant. Another
factor that weighs in the Applicant's favour in this regard is that
the delay was not in anyway unconscionable. It was less than thirty
constitutes a cause for concern to me is that the Applicant has been
very vague regarding the time periods when the various incidents
occurred. In an application for condonation such as this, it is
imperative to account for the delay with precision to enable
Court to ascertain whether or not you are guilty of dragging your
feet. Notwithstanding these deficiencies, I am of the view that the
Applicant ha met this requirement as well.
come to this conclusion mindful of the remarks of Van Winsen J. in
STOKES v FISH 1966 (4) S.A. 421 at 425, where the learned Judge
stated as follows regarding similar provisions relating to suing a
attitude of the Courts to sections such as these is that they
constitute a 'very serious infringement on the rights of individuals'
and must be liberally interpreted in favour of the applicant. "
point regarding the Supplementary Affidavits raising new matter was
not pursued and appears to be without merit. There is no mention of
the particular allegations which constitute new matter in the
Supplementary Affidavits. I find it unnecessary to say more on this
the question of costs, the normal rules in regard to indulgences
requested by litigants are that the applicant in such cases is held
liable, not only for his own costs but for the costs of the
respondent if such opposition by the respondent is reasonable and
contributed to the solution of the dispute. See MEINTJIES N.O. v
ADMINISTRATOR BOARD OF CENTRAL TRANSVAL 1980 (1) S.A. 283.
am of the view that the Respondent's opposition in this case was not
unreasonable and the Applicant is to pay the costs of this
application and it is so ordered.
Applicant be and is hereby ordered to file a letter of demand within
ten (10) days of the date of this judgement.