- Colonel Phillipus Jacobus van Dyk was suspended in 2010. The High Court set aside his suspension in May 2015, but he was only reinstated in April 2021.
- Judge A Millar found that his damages claim arose when the suspension was lifted and prescribed three years later on 21 May 2018.
- The High Court in Pretoria dismissed his application for condonation for a late statutory notice but did not rule on his separate contractual employment claim.
Colonel Phillipus Jacobus van Dyk, an officer in the SANDF, stayed off duty for years after the High Court set aside his suspension. However, the department’s ongoing refusal to reinstate him did not keep his damages claim alive indefinitely.
Judge A Millar found that the claim arose in May 2015 when the suspension was lifted and prescribed three years later, leaving Van Dyk unable to revive it with a late statutory notice.
Van Dyk went to the High Court in Pretoria to seek permission to deliver a statutory notice late. This notice, required under the Institution of Proceedings against Certain Organs of State Act, was meant to support his damages claim against the Minister of Defence and Military Veterans.
In his founding affidavit, Van Dyk said his attorneys delivered the notice on 15 December 2021, which he calculated was 10 days late. He argued the delay was not excessive, the Minister would not be prejudiced, and his attorneys had acted in good faith after discovering an administrative oversight.
Judge Millar found that these reasons did not amount to good cause for the late delivery. The judge also pointed out a bigger problem: the damages claim had already prescribed before the notice was served.
The suspension was set aside, but the colonel remained off duty
Van Dyk was suspended from his duties on 9 April 2010. He challenged the suspension, and on 21 May 2015, the High Court reviewed and set it aside.
Despite this, the department did not let him return to work. Van Dyk went back to court, and on 7 June 2021, an order declared that the respondents’ refusal to let him do his job after 21 May 2015 was unlawful.
The court granted this declaration instead of his initial request to have the Minister held in contempt of the earlier order. Both proceedings were brought under the same case number.
Van Dyk was reinstated on 23 April 2021 and retired on 31 December 2021. His claims against the Minister included alleged breaches of his employment agreement and damages for loss of earnings, emotional shock and trauma, post-traumatic anxiety and depression, and defamation.
Prescription began when the suspension was set aside
The Institution of Proceedings against Certain Organs of State Act usually requires anyone wanting to claim a debt from an organ of state to deliver notice within six months after the debt becomes due. To get condonation, a claimant must show that the claim has not prescribed, that there is good reason for the delay, and that the organ of state has not been unreasonably prejudiced.
Judge Millar found that Van Dyk’s cause of action for damages started on 21 May 2015, when the suspension was set aside, and he had all the facts needed to start legal proceedings.
The department’s ongoing refusal to comply with the order until 2021 did not change the date when the cause of action arose. Prescription began running on 22 May 2015, and the damages claim prescribed three years later on 21 May 2018.
Judge Millar rejected Van Dyk’s reliance on the Constitutional Court’s decision in Links v Member of the Executive Council, Department of Health, Northern Province, saying it did not help him because his cause of action for damages was already complete in 2015.
The judge held that the late statutory notice could not change the fact that the damages claim had already prescribed.
Contractual employment claim remains undecided
The judgment drew a line between Van Dyk’s damages claim and his separate claim for breach of his employment agreement. Referring to a Supreme Court of Appeal decision, Judge Millar explained that the law’s definition of a debt distinguishes between damages claims and other types of claims.
The judge found that the contractual employment claims did not fall into the category of damages claims that require statutory notice. The merits of those claims were outside the scope of the condonation application, and Judge Millar did not express a view on them.
The court dismissed Van Dyk’s application for condonation and ordered him to pay the Minister’s costs on the party-and-party scale, scale B. Although the Minister appointed more than one counsel, Judge Millar found that the matter did not justify covering the costs of more than one counsel.
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