The Pretoria high court has dealt a blow to a former government employee’s multimillion-rand lawsuit against two state departments, ruling that her claim had legally expired due to delays by her legal teams.
In a judgment handed down on Wednesday, judge Anthony Millar dismissed the application by Thandeka Mxenge, who sought the court’s condonation for the late filing of her application for damages arising out of the malicious prosecution of disciplinary proceedings. This is after she missed critical statutory deadlines to sue the department of women, youth and people with disabilities and the department of justice.
Mxenge was fired from her position at the department of women, youth and people with disabilities in July 2018. She challenged her dismissal and took the matter to arbitration.
The arbitrator ruled in Mxenge’s favour on September 30 2019, and the decision was communicated to the parties on October 4 2019.
The arbitrator also ordered that Mxenge be permitted to return to work on October 21 2019 and that all payments due to her be made. Mxenge went back to the office but later sued the state for damages.
In his judgment, Millar said in the ordinary course, the date on which the debt would be said to have become due, was October 4 2019. He said the last day upon which the claim could be enforced by the service of legal process was October 4 2022.
He said based on this timeline, the notice to be delivered in terms of the Institution of Legal Proceedings against Certain Organs of State Act (Ilpacosa) was to be delivered by April 4 2020. However, Mxenge’s notice in terms of Ilpacosa was delivered on October 13 2021, just over two years after she was notified of the arbitration award and 18 months later than it ought to have been served.
Millar said in the present application, the department that employed Mxenge was aware of the course of action and was party to the proceedings that gave rise to it.
The judge said what was in issue was whether the debt has prescribed and whether there is good cause on Mxenge for not complying timeously with the delivery of the notice in terms of Ilpacosa.
Millar said the summons in this matter was issued on October 4 2022 and served on October 6 2022, two days outside of the three-year period required by the Prescription Act.
“In the present matter, on a plain reading of the Prescription Act and the ordinary rules of interpretation and calculation of the time period, the summons was not served timeously, the claim became prescribed and for that reason alone, condonation for the late delivery of the section 3(1) notice in October 2021 ought to be refused.”
Mxenge’s counsel had argued that the debt did not become due on October 4 2019 when she was notified of the arbitrator’s award.
The contention on the part of the applicant that the date on which the debt became due is November 13 2019, is self-serving and is simply not borne out by the facts.
— Judge Anthony Millar
She contended that the debt only became due on November 13 2019 when the minister informed her that she accepted the award, and she was then allowed entry into her old office.
Mxenge said between October 21 and November 13 2019, she had returned to work but was dissatisfied that she could not return to her original office and was excluded from certain meetings.
Millar said from the time the award was made and the parties notified of it, no steps were taken on the part of the minister or the department to repudiate the award or to have it set aside.
He said though the minister and the department were uncooperative in responding to Mxenge’s requests after October 21 2019, it did not change the fact that the arbitral award was binding and ultimately implemented.
“The contention on the part of the applicant that the date on which the debt became due is November 13 2019, is self-serving and is simply not borne out by the facts.”
Millar said Mxenge, aware of the difficulty she faced, brought a constitutional challenge to section 15(1) of the Prescription Act.
Millar said the challenge was brought on the basis that requiring the process to interrupt prescription be served on the debtor within the three-year period constituted a limitation of various constitutional rights.
Millar quoted a Constitutional Court case noting that the apex court had on at least four occasions considered the constitutionality of time-bar provisions.
That judgment said the principles that emerged were that these time-bars limited the right to seek judicial redress. However, they served an important purpose of preventing inordinate delays which may be detrimental to the interests of justice.
“In summary ... the applicant has failed to demonstrate that her claim did not become prescribed in consequence of the late service of process and furthermore that no good cause was shown for the delivery of the notice some 18 months out of time.”
In refusing Mxenge’s application for the late filing of the notice in terms of Ilpacosa, Millar also ordered Mxenge to pay the legal costs.
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