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2023
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[2023] ZAFSHC 428
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M.J.P.R v Wessels and Another - Appeal (A79/2021) [2023] ZAFSHC 428 (2 November 2023)
FLYNOTES:
CIVIL PROCEDURE – Organs of state –
Notice
–
Husband
killed in motor accident – Two young children supported –
Attorneys lodging incompetent claim against
Road Accident Fund –
New attorneys claiming from MEC on basis of responsibility for
road maintenance – No explanation
for delay of a year from
when appellant terminated mandate of erstwhile attorneys –
No explanation for four months
delay in filing condonation
application – Not even best interests of children could
overcome complete absence of any
explanation – Appeal
dismissed – Attorneys
Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002
,
s 3(2)(a).
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: A79/2021
In
the matter between:
M[…]
J[…] P[…] R[…]
Appellant
and
BLIGNAUT
WESSELS
1
st
Respondent
MEC
POLICE, ROADS AND TRANSPORT FOR THE
FREE
STATE
PROVINCE
2
nd
Respondent
CORAM:
MHLAMBI, J et LOUBSER, J
et
CHESIWE, J
HEARD
ON:
6 OCTOBER 2023
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
2 NOVEMBER 2023
[1]
This is an appeal against the dismissal by a single Judge of this
Division of an application
for condonation for the late filing of a
notice of the Appellant’s intention to institute legal
proceedings against the Second
Respondent within a period of six
months from the date on which the debt became due.
[1]
The appeal came before this Court on special leave granted by the
Supreme Court of Appeal.
[2]
It appears from the record of proceedings in the Court
a quo
that the Appellant is acting against the Second Respondent in her
representative capacity as mother and natural guardian of two
minor
children who were aged 7 months and 4 years respectively on the date
when the debt became due. It further appears to be common
cause that
the debt became due on 29 May 2011 and that the six months notice
contemplated in
Section 3(1)(a)
of the Act was only served on the
Second Respondent on 13 December 2018, approximately 7 years late. It
is common cause between
the parties that the Second Respondent is an
organ of state as contemplated in the Act.
[3]
In the summons, which was served on the Second Respondent on 7 May
2019, the Appellant
stated that on 29 May 2011, when it was already
dark, her husband was killed in a motor vehicle accident on the road
between Reitz
and Tweeling when he overtook another vehicle and when
his vehicle then overturned in the process. The deceased was the
natural
father of the two minor children, and in that capacity he was
responsible for their upbringing and maintenance. He also supported
the Appellant at the time of his death, it is alleged in the summons.
[4]
The Appellant founded her claim against the Second Respondent on the
premise that
he is responsible for the upkeep and maintenance of the
road in question, but that he failed to do so, since the road was
full
of potholes and uneven surfaces without any signs warning
motorists that it was unsafe and dangerous to drive on the road and
to
overtake other vehicles, especially at night. The Appellant’s
claim against the First Respondent, a firm of attorneys, is
based
upon their alleged negligence in allowing the Appellant’s claim
to become prescribed.
[5]
It is alleged in the summons that the Appellant instructed the First
Respondent soon
after the accident to recover damages from any party
liable in law following the death of her husband. The First
Respondent then
pursued a claim against the Road Accident Fund, which
claim later appeared to the First Respondent to have been
incompetent. By
that time, which was during the second half of 2017,
the claim of the Appellant in her personal capacity had already
become prescribed.
The claim on behalf of the minor children had not
become prescribed in terms of the provisions of Section 13(1)(a) of
the Prescription
Act.
[2]
As a result of these developments, the Appellant then acquired new
attorneys and summons was issued against the First and
Second
Respondents. In his Plea, the Second Respondent raised a special plea
of non-compliance with the provisions of Section 3(2)(a)
of the Act
in that the Appellant’s notice of her intention to institute
proceedings on behalf of the children was not served
within the
period of six months from the date on which the debt became due. It
is this special plea that caused the Appellant to
approach the Court
a quo
for condonation of the late filing of the notice.
[6]
In terms of Section 3(4)(b) of the Act a court may condone the late
filing of the
notice if it is satisfied that the debt has not become
prescribed, that good cause exists for the failure to serve the
notice timeously
and that the defendant was not unreasonably
prejudiced by the failure. Since the claim on behalf of the minor
children had not
become prescribed, the Court
a quo
was only
called upon to consider the aspects of good cause and prejudice in
the application. Having done so, the Court
a quo
found against
the Appellant.
[7]
When it comes to the question whether the Appellant has shown good
cause for the late
filing of the notice in the Court
a quo
, it
speaks for itself that the founding affidavit filed by the Appellant
in the application for condonation should be studied scrupulously
to
arrive at a just conclusion. In this affidavit the Appellant had the
following to say: At the time of the accident she was a
young
housewife with no knowledge at all of legal proceedings. Therefore
she completely relied on the First Respondent, whom she
instructed to
deal with the case about three weeks after the accident. She took the
attorney to the scene of the accident, where
he took many
photographs. On that day workmen of the Second Respondent were busy
repairing the potholes on the road.
[8]
Her attorney explained to her that she had a Road Accident Fund claim
and what he
was going to do about it. In the days and weeks that
followed, she kept on enquiring about the progress of the claims, but
she
was always informed that the attorney were waiting for documents.
Eventually she went to fetch a copy of the police docket to expedite
matters and she delivered it to the First Respondent. All the time
she was kept in the dark and she was not informed of who was
to be
blamed and be sued for the accident, and when. Sometime during 2017,
on a date she cannot recall, she was informed by the
First Respondent
that her own claim had become prescribed, but that her children still
had a claim.
[9]
It was then that she instructed her present attorneys, who informed
her that there
was no claim against the Road Accident Fund as the
accident was not caused by the negligence of the driver of another
vehicle.
She provided her new attorneys with all the documents and
photographs in her possession. The attorneys then advised her that
the
claim would be against the authority responsible for the
maintenance of the road, as they had negligently failed to perform
their
duty of care. Her attorneys subsequently served the notice of
intention to institute legal proceedings on the Second Respondent.
Her erstwhile attorneys, the First Respondent, never advised her that
such a letter had to be served within six months of the date
of the
accident.
[10]
As for the element of possible prejudice to the Second Respondent if
condonation is granted,
the Appellant contended in her founding
affidavit that there could not be any prejudice. She based this
contention on the following:
The Second Respondent is supposed to
keep records of the inspection and maintenance of the roads within
its jurisdictional area.
Consequently, there should be a record
showing that the Second Respondent’s servants repaired the
potholes shortly after
the accident and at the place where it
happened. Furthermore, the records of the SAPS and the full record of
the inquest held after
the accident, are available to the Second
Respondent.
[11]
Here it needs mentioning that the Appellant annexed the said records
to her founding affidavit.
At the inquest it was found that the death
was caused by a head injury and that the death was not brought about
by any act or omission
amounting to an offence on the part of any
person. The SAPS records show that there were potholes on the road,
but no road signs.
According to an affidavit provided by an
eye-witness, the deceased overtook three motor vehicles travelling in
the same direction.
In the process he lost control of his vehicle,
and the vehicle overturned on the right hand side of the road and
crashed into a
telephone pole.
[12]
The SAPS records also include photographs and a sketch plan of the
scene of the accident, prepared
by a warrant officer of the local
Criminal Record Centre. The sketch plan shows a number of potholes on
the right hand side of
the road where the vehicle of the deceased
left the road. The Appellant’s own photographs taken soon after
the accident are
annexed to a report by an engineer who later
investigated the cause of the accident. On these photographs the
potholes and the
uneven surface of the road on the right hand side
thereof are clearly visible. No warning signs are visible on the
photographs.
The engineer opined in his report that the accident was
caused by the potholes, by the absence of warning signs and by the
failure
of the road authority to maintain the road properly.
[13]
Now the Supreme Court of Appeal has stated in
Madinda
v
Minister of Safety and Security
[3]
that
good cause usually refers to the prospects on the merits of a case,
as well as the reasons for the delay, the bona fides of
the applicant
and the contribution by other persons or parties to the delay and the
applicant’s responsibility therefore.
It is clear that the
Appellant has dealt with each and every one of these elements of good
cause in her founding affidavit.
[14]
In her judgement, the learned Judge in the Court
a quo
found
that the Appellant was clearly well versed about legal proceedings,
because she already formed the opinion soon after the
accident that
the bad state of the road was the cause of the accident. She also
instructed the First Respondent to pursue a claim
and she made
enquiries about the progress of that claim. The Appellant has
therefore not shown good cause for the delay in giving
the notice,
she found. In addition, the learned Judge found that the Appellant
has no prospects of success in the main action against
the Second
Respondent, because there is not sufficient evidence to show that the
accident was caused by the bad state of the road.
Furthermore, the
learned Judge found that the Appellant has not set out the grounds
upon which it can be said that the Second Respondent
is not
unreasonably prejudiced by the failure to serve the notice timeously.
[15]
Having regard to what the Appellant has set out in her founding
affidavit, I am of the view that
the above findings, or at least one
or two of them, could be labelled debatable or contentious. However,
the findings of the learned
Judge did not end there. She also found
that no explanation was given for the delay for about a year from the
time the Appellant
terminated the mandate of her erstwhile attorneys
to December 2018 when her current attorneys transmitted the notice to
the Second
Respondent. This aspect caused the learned Judge to
conclude that the explanation for the delay was insufficient and
unreasonable,
and that the Appellant has consequently not shown good
cause for condonation.
[16]
It is quite correct that no explanation whatsoever was given for this
delay for about a year.
In her founding affidavit the Appellant
merely mentioned that sometime during 2017, on a date she cannot
recall, she was informed
by the First Respondent that her claim had
become prescribed, but that the children still had a claim. At that
stage, she said,
she felt terribly let down and went to see her
present attorney of record. Acting on her instructions, her present
attorney caused
the notice to be delivered on the Second Respondent
on or about 13 December 2018. In her Particulars of Claim, the
Appellant alleged
that she was informed of the prescription of her
claim by the First Respondent during the second part of 2017. Be it
as it may,
it is clear from the Appellant’s own version that a
whole year has lapsed before the notice was served.
[17]
However, the period of delay before the notice was delivered, is not
the only aspect that causes
concern, because the 4 months delay in
filing the condonation application is of equal importance. The Second
Respondent’s
Plea relating to the failure to serve a notice
timeously was filed on 19 September 2019. The application for
condonation was only
filed on 30 January 2020. Again, there is no
explanation whatsoever on the papers for this delay.
[18]
Our law in this respect is clear. If it is found that there is no
reasonable and acceptable explanation
for a delay in filing the
application, then it would follow that the application for
condonation as a whole cannot succeed.
[4]
In
Minister
of Agriculture and Land Affairs v C J Rance (Pty) Ltd
[5]
the
Supreme Court of Appeal held that condonation must be applied for as
soon as the party concerned realises that it is required.
[6]
In
Van
Wyk v Unitas Hospital
[7]
the Constitutional Court confirmed the requirement that an applicant
must give a full explanation for the delay. “In addition,
the
explanation must cover the entire period of delay”
[8]
,
the court stated.
[19]
The four months delay in filing the application for condonation is,
in my view, an unreasonable
period of time which certainly called for
an explanation. As already indicated, there was no explanation at
all.
[20]
The result is that, in the absence of any explanation for the
pre-notification and post-notification
delays, it cannot be said that
the Appellant has furnished a sufficient explanation for the entire
period of delay. For this reason
alone, the application for
condonation had to fail in the Court a quo, as it did.
[21]
I am also satisfied that the learned Judge in the Court
a quo
was alive to the fact that the interests of the minor children were
at stake in the proceedings before her. She referred to Section
28(2)
of the Constitution to the effect that the best interests of the
children are of paramount importance in every matter concerning
children, but she nevertheless was not satisfied that a proper case
has been made out for an order condoning the late filing of
the
notice. I agree with this finding insofar as the complete absence of
any explanation for the long delay after the Appellant’s
current attorneys came on board, is concerned. In my view, not even
the best interests of the children can overcome this fundamental
flaw
in the Appellant’s explanation for the entire period of delay.
The appeal therefore cannot succeed.
[22]
As for the costs, counsel for the Second Respondent has requested an
order of costs for two counsel.
I am not satisfied that such an order
would be justified. The facts of the matter were not complicated,
while the legal principles
concerned were mostly trite law.
In
the premises the following order is made:
1.
The appeal is dismissed with costs, which costs are not to include
the costs of two counsel.
P.
J. LOUBSER, J
I
concur:
J.J.
MHLAMBI, J
I
concur:
S.
CHESIWE, J
For
the Appellant:
Adv. G. S. J. van Rensburg
Instructed
by:
Leon J.J. van Rensburg Attorneys, Edenvale
c/o Rosendorff Reitz
Barry, Bloemfontein
For
the Second Respondents: Mr. B. S. Mene
SC
Instructed
by:
State Attorneys,
Bloemfontein
/roosthuizen
[1]
Section 3(2)(a) of the Institution of Legal Proceedings against
certain Organs of State Act no 40 of 2002 (the “Act”)
[2]
Act 68 of 1969
[3]
2008(4)
SA 312 (SCA) at par 10
[4]
See
e.g. OC Potgieter v MEC for Police, Roads and Transport, unreported
judgement of this Division, case no. 3859/2015, par 17
[5]
2010 (4) SA 109 (SCA)
[6]
Par 39 of the judgement
[7]
2008 (2) SA 472 (CC)
[8]
At par 22 of the judgement