Minister of Agriculture and Land Affairs v C J Rance (Pty) Ltd (293/09) [2010] ZASCA 27; 2010 (4) SA 109 (SCA) ; [2010] 3 All SA 537 (SCA) (25 March 2010)

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Minister of Agriculture and Land Affairs v C J Rance (Pty) Ltd (293/09) [2010] ZASCA 27; 2010 (4) SA 109 (SCA) ; [2010] 3 All SA 537 (SCA) (25 March 2010)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 293/09
Minister of Agriculture and Land Affairs
Appellant
and
C J Rance (Pty) Limited Respondent
Neutral citation:
Minister
of Agriculture and Land Affairs v C J Rance (Pty) Limited
(293/09)
[2010] ZASCA 27
(25 March 2010)
Coram:
Navsa, Lewis JJA,
Hurt, Griesel et Majiedt AJJA
Heard:
2 March 2010
Delivered:
25 March 2010
Summary:
Condonation in terms
of
section 3(4)(b)
of the
Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002
– rationale for notice
period discussed – factors to be considered for condonation –
statutory requirements not met.
ORDER
On appeal from: North Gauteng High Court, Pretoria
(Tlhapi AJ sitting as court of first instance):
1 The appeal is upheld with costs, including the costs
of two counsel.
2 The order of the court below is set aside and
substituted with the following:
'1 The application for condonation in terms of
paragraphs 2 and 3 of the Notice of Motion is dismissed with costs,
including the costs
of two counsel.
2 The respondent's application to strike out the
replying affidavit, with the exclusion of paragraphs 26, 27, 28, 45
and 84 is granted
with costs, including the costs of two counsel.'
JUDGMENT
MAJIEDT AJA (Navsa, Lewis JJA, Hurt et Griesel AJJA
concurring)
[1] The respondent company, CJ Rance (Pty) Ltd (the
company), gave notice to the appellant, the Minister of Agriculture
and Land Affairs
(the Minister), of intended legal proceedings. The
notice was delivered after the six month period prescribed by
s
3(2)(a)
of the Institution of Legal Proceedings against certain
Organs of State Act
40 of 2002 (the Act).
[2] The present appeal against that decision is before
us with the leave of the court below. The appeal turns on the
application of
the provisions of the Act, the material parts of which
will be dealt with in due course.
[3] The company conducts a sawmilling business and
relies on the Kubusi plantation for the supply of pine logs. The
company averred
that on 1 September 2003 a fire destroyed a standing
crop of trees on the Kubusi plantation, depriving its sawmills of its
source
of supply and that it consequently sustained a loss of
profits. It alleged that the fire originated on 31 August 2003, on
land owned
and/or controlled by the Minister. In seeking to hold the
Minister liable, the company relied, inter alia, on the provisions of
s
2 of the National Veld and Forest Fire Act
101
of 1998
(the FFA).
[4] The provisions of the FFA impose a number of
obligations on owners to prevent fires originating from or spreading
from their land.
‘Owner’ is defined in s 2 of the FFA as
including, in relation to the State, the Minister, the Government
department, or the
member of the executive council of the provincial
administration exercising control over State land or a person
authorised by any
one of the aforegoing.
[5] Section 34 of the FFA assists the company, in that
it creates a statutory presumption of negligence. It provides that in
civil
proceedings, where a plaintiff proves that he or she suffered
loss from a veldfire, which the defendant caused or which started or
spread from land owned by the defendant, the latter is presumed to
have been negligent in relation to the veldfire until the contrary
is
proved. In its particulars of claim the company specifically relies
on this presumption.
[6] Almost two and a half years passed before the
company served notice on the Minister of its intention to institute
proceedings
against the latter. Notice was served on 16 February
2006. Summons was served on 29 August 2006 (shortly before the expiry
of the
applicable three year prescription period). This prompted the
filing of a special plea by the Minister, in terms of which the
Minister
asserted that the company’s failure to give notice within
the prescribed period was fatal to its claim, and the Minister sought
an order that the claim be dismissed with costs. In consequence the
company launched the condonation application and sought, in the
alternative, a declarator that its letter of 16 February 2006
constituted compliance with s 3(1) and (2) of the Act, and further
alternatively, that its summons and particulars of claim served on
the respondent on 29 August 2006 were valid in terms of s 3(1)
of the
Act.
[7] The applicant's primary contention in support of its
application for condonation was to the effect that, despite its best
efforts,
it was not able to ascertain prior to February 2006, first,
the identity of the owner and then of the relevant organ of State
which
controlled it. In this regard it placed reliance on s 3(3)(a)
of the Act.
[8] The court below was ‘satisfied’ that there was
good cause for the delay. It held that the company had ‘failed to
show that
it was prejudiced by the delay’. The court below granted
condonation. It did not rule on the declaratory order. At this stage,
it is necessary to consider the applicable statutory provisions.
[9] The applicable provisions of s 3 of the Act read as
follows:
'3 Notice of intended legal proceedings to be given to
organ of State
(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)
the organ of State in
question has consented in writing to the institution of that legal
proceedings-
(i) without such notice; or
(ii) upon receipt of a notice which does not comply with
all the requirements set out in subsection (2).
(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)
……..
(3) For purposes of subsection (2)
(a)
–
(a)
a debt may not be
regarded as being due until the creditor has knowledge of the
identity of the organ of State and of the facts giving
rise to the
debt, but a creditor must be regarded as having acquired such
knowledge as soon as he or she or it could have acquired
it by
exercising reasonable care, unless the organ of State wilfully
prevented him or her or it from acquiring such knowledge; and
(b)
a debt referred to in
section 2 (2)
(a),
must
be regarded as having become due on the fixed date.
(4)
(a)
If
an organ of State relies on a creditor's failure to serve a notice in
terms of subsection (2)
(a),
the
creditor may apply to a court having jurisdiction for condonation of
such failure.
(b)
The court may grant an
application referred to in paragraph
(a)
if
it is satisfied that-
(i) the debt has not been extinguished by prescription;
(ii) good cause exists for the failure by the creditor
and
(iii) the organ of State was not unreasonably prejudiced
by the failure.
(c) . . . .’
[10] It is not in issue that the envisaged claim for
damages is a claim for the recovery of ‘a debt’ as defined in s 1
of the
Act and that the respondent represents the Department of Land
Affairs, an organ of State.
[11] As can be seen, s 3(4)
(b)
circumscribes a court’s power by requiring that it be satisfied
that: (i) the debt has not been extinguished by prescription; (ii)
good cause exists for the failure by the creditor, ie to serve the
statutory notice according to s 3(2)
(a)
or to serve a notice that complies with the prescripts of s 3(2)
(b)
;
and (iii) the organ of State was not unreasonably prejudiced by the
failure.
1
These requirements are conjunctive and must be established by the
applicant for condonation.
[12] The first requirement, namely that the debt has not
been extinguished by prescription, does not arise. I intend to deal
mainly
with the condonation granted by the court below, purportedly
in terms of s 3(4)(
b)
of the Act and to consider whether the court below could rightly be
satisfied that the statutory requirements had been met. That
is the
decision appealed against. I intend to do so mainly on the basis of
the company’s version of events.
[13] In considering whether condonation was rightly
granted it is instructive to bear in mind why notices of the kind
contemplated
in s 3 of the Act have been insisted on by the
legislature. Statutory requirements of notice have long been familiar
features of
South Africa’s legal landscape. The conventional
explanation for demanding prior notification of intention to sue
organs of State,
is that, ‘with its extensive activities and large
staff which tends to shift it needs the opportunity to investigate
claims laid
against it, to consider them responsibly and to decide,
before getting embroiled in litigation at public expense, whether it
ought
to accept, reject or endeavour to settle them’.
2
From time to time there have been judicial pronouncements about how
such provisions restrict the rights of its potential litigants.
However, their legitimacy and constitutionality is not in issue.
3
[14] In
Mohlomi
the following is Stated:
4
‘
Rules that limit the time during which litigation may
be launched are common in our legal system as well as many others.
Inordinate
delays in litigating damage the interests of justice. They
protract the disputes over the rights and obligations sought to be
enforced,
prolonging the uncertainty of all concerned about their
affairs. Nor in the end is it always possible to adjudicate
satisfactorily
on cases that have gone stale. By then witnesses may
no longer be available to testify. The memories of ones whose
testimony can
still be obtained may have faded and become unreliable.
Documentary evidence may have disappeared. Such rules prevent
procrastination
and those harmful consequences of it. They thus serve
a purpose to which no exception in principle can cogently be taken.’
[15] I turn to the facts of the present case. The
statutory notification period of six months afforded the applicant as
a creditor
by s 3(2)
(a)
of the Act, would, in the normal course of events, if taken from the
date that the fire destroyed the Kubusi plantation, have expired
at
midnight on 1 March 2004.
[16] It is of some significance that the principal
deponent in support of the company’s case is its attorney, Du
Plessis, who set
out the steps taken over the years to identify the
owner and/or controller of the land on which the fire is alleged to
have originated.
The description of events and the explanations for
the delay as provided by Mr du Plessis are set out in the paragraphs
that follow.
[17] On 1 September 2003 when the fire raged through the
Kubusi plantation the company had no knowledge of the origins of the
fire,
save that it was evident that the fire approached from the
north-west. It was clear that the fire had its origins several
kilometres
away. The company could trace no direct eyewitnesses to
the time and the origins of the fire.
[18] The company turned to an internationally renowned
expert in the field of forestry related fire investigations who was
based in
South Africa, namely, Dr Cornelis de Ronde, who
commenced his investigations into the origins of the fire on 10
September 2003.
It is important to note that De Ronde was not
instructed to determine who was the owner and/or controller of the
land on which the
fire originated. His brief was to identify the spot
from which the fire originated.
[19] It took De Ronde approximately six months to
finalise his report, which he presented to the company on 7 April
2004. Du Plessis
provided no reason for this long delay, nor does he
State that from the commencement of the investigation he or the
company urged
De Ronde to be expeditious.
[20] It is necessary to record that the plantations that
sustained fire damage are collectively known as the Amathole pool of
plantations
and included the Kubusi plantation. The commercial
forestry enterprise on the Kubusi plantation is conducted by the
Amathole Forestry
Company (Pty) Ltd (AFC), which also acquired
certain forestry enterprises, including the Amathole pool of
plantations from the South
African Forestry Company Limited (SAFCOL).
The company is a
subsidiary
of AFC. Before November 2001 DWAF
5
and SAFCOL, which is a State owned enterprise, conducted all State
forestry enterprises in the Amathole pool of plantations.
[21] According to Du Plessis, De Ronde’s report
provided in April 2004, beyond the six month period contemplated in s
3(2) of the
Act, indicated that the fire that destroyed the Kubusi
plantation originated on the southern slope of a hill to the north of
what
was referred to as the Cata plantation. The following excerpt
from the report was quoted:
'. . . the fire started along a
footpath winding down the mountain slope, at the (State ?) property
(according to report probably
belonging to DWAF) above the Cata
plantation.'
Unfortunately and inexplicably, De Ronde’s report was
not supplied.
[22] Du Plessis Stated that De Ronde’s report was the
first indication of the origins of the fire. The land on which the
fire originated
is described as neither being fenced-off, nor
accessible by formal road infrastructure. There are no buildings, no
road signs and
no identifying nameplates.
[23] Du Plessis averred that Mr John Rance, the
company’s director of operations, has lived in the affected area
for more than 50
years, speaks isiXhosa, and is acquainted with the
local inhabitants. Rance, subsequent to De Ronde’s report,
apparently had no
success in establishing from the local inhabitants
whether anyone had ever laid claim to the land on which it was
alleged the fire
had originated. There is, however, a commercial
forest situated to the south of the land on which the fire originated
which is known
as the Cata plantation. It is common cause that the
area in question is hilly, uninhabited terrain with very dense
vegetation.
[24] According to Du Plessis, enquiries by him and
Rance subsequent to De Ronde’s report, yielded a ‘guess’ that
the land
in question might be owned by the State and that it was
probably controlled by DWAF. We know that De Ronde’s report had
already,
in April 2004, indicated as a matter of probability that the
land in question was owned by the State and more particularly by
DWAF.
By all accounts DWAF signage abounds in the neighbourhood in
which the fire originated and spread. According to Du Plessis his
enquiries
with DWAF in April 2004 in relation to land ownership ‘led
to a dead end’.
[25] Du Plessis, ‘in order to establish with more
certainty who owned and/or controlled the land on which the fire
originated’,
subsequently consulted a collection of State
plantation and forest maps compiled by SAFCOL in conjunction with
DWAF.
[26] The SAFCOL map book identified the land in
question as 'Cata 12', ’Nyameni Cata’ and 'Nyameni'. Deeds office
searches were
done in Pretoria for information relating to 'Cata 12',
'Nyameni Cata' and 'Nyameni', but yielded no results. A second search
later
in the same Deeds Office revealed that this particular land was
unregistered State land. This later information was obtained in
January
2006. There is no indication about when this information was
solicited.
[27] Du Plessis is also the attorney for SAFCOL and,
because SAFCOL and DWAF formerly controlled all State forests and
plantations
in the area, he thought the former was ‘
the
most likely
to have information pertaining to
ownership and control of land in and around plantations and forests’
6
(my emphasis). He consequently approached SAFCOL and discussed the
matter with a general manager, Mr Johan Raath, who offered to
make
enquiries. Towards the end of January 2006, Raath informed Du Plessis
that the land might well be under the control of the Department
of
Land Affairs ('DLA').
[28] Armed with this information, a letter was addressed
by Du Plessis on behalf of the company on 16 February 2006 to the
DLA, purportedly
in compliance with s 3(2)(b)(i) and (ii) of the Act.
[29] Subsequently Du Plessis entered into extensive
correspondence with the State Attorney acting on behalf of the DLA.
Du Plessis’
efforts were directed at obtaining an admission by the
DLA that it owned and/or controlled the land on which the fire
allegedly originated.
In April 2006 a site inspection was arranged on
that land. This site inspection was attended by representatives of
both parties,
but yielded no tangible results (the accusations on
both sides apportioning blame to the other for this futile exercise
take the
matter no further and does not warrant any further
discussion).
[30] A further flurry of correspondence from Du Plessis
to the DLA and the State Attorney ensued, all of which remained
unanswered.
It was only after summons was issued on 28 August 2006
that the State Attorney responded to this correspondence.
[31] In her plea the Minister averred that the land in
question is controlled by the Amazizi Traditional Community. This
took Du Plessis
by surprise. Investigations followed, including
research into relevant legislation which led Du Plessis to the Ciskei
Administrative
Authorities Act.
7
This Act appeared to confirm that the Cata 12 land was under the
control of the Keiskammahoek North Tribal Authority (for the Amazizi
Tribe). Du Plessis averred that the obscurity and ambiguity of this
information itself constitute 'good cause' within the meaning
envisaged in s 3(4)b)(ii) of the Act.
[32] It is uncontested that the DLA controls
approximately 17 million out of 25 million hectares of State owned
land. A significant
proportion of this land is rugged and
inaccessible. As a consequence administration is difficult. The
principal deponent on behalf
of the Minister complained that the
company’s reluctance to share its own information and aerial
photographs contributed to the
delay in identifying whether the DLA
owned the land. The company supplied De Ronde’s report to the DLA
for the first time in February
2008.
[33] In terms of s 3(4)
(b)
a court may grant condonation if it ’is satisfied’ that the three
requirements set out therein have been met. In practical terms
this
means the ‘overall impression’ made on a court by the facts set
out by the parties.
8
[34] It was submitted on behalf of the company that it
took all the necessary steps within its power to identify the owner
and/or
controller of the land in question. Counsel contended that
such steps as had been taken by or on behalf of the company were
reasonable
and constituted ‘good cause’ within the meaning of
that phrase in s 3(4)
(b)
(ii)
of the Act. He submitted further that the Minister’s uncooperative
attitude and the inaction of the DLA’s bureaucrats were
what
created prejudice for the Minister rather than the delay in serving
the notice. The Minister’s servants failed to signpost
the land
nominally owned by the Minister and they were totally unresponsive to
those affected by the fire. Whilst Du Plessis labelled
the Minister
and those representing her as being obstructive, counsel representing
the company was rightly constrained to concede
that at its worst for
the Minister her bureaucrats were inept rather than wilfully
obstructive.
[35] In general terms the interests of justice play an
important role in condonation applications.
9
An applicant for condonation is required to set out fully the
explanation for the delay; the explanation must cover the entire
period
of the delay and must be reasonable.
10
[36] 'Good cause' within the meaning contained in s
3(4)
(b)
(ii) has not
been defined, but may include a number of factors which will vary
from case to case on differing facts. Schreiner JA
in dealing with
the meaning of ‘good cause’ in relation to an application for
rescission, described it thus in
Silber v Ozen
Wholesalers
(
Pty)
Ltd
:
11
'The meaning of "good cause" in the present
sub-rule, like that of the practically synonymous expression
"sufficient
cause" which was considered by this Court in
Cairn's Executors v Gaarn
1912
AD 181
, should not lightly be made the subject of further definition.
For to do so may inconveniently interfere with the application of
the
provision to cases not at present in contemplation. There are many
decisions in which the same or similar expressions have been
applied
in the granting or refusal of different kinds of procedural relief.
It is enough for present purposes to say that the defendant
must at
least furnish an explanation of his default sufficiently full to
enable the court to understand how it really came about,
and to
assess his conduct and motives'.
12
[37] The prospects of success of the intended claim play
a significant role – 'strong merits may mitigate fault; no merits
may render
mitigation pointless.'
13
The court must be placed in a position to make an assessment on the
merits in order to balance that factor with the cause of the
delay as
explained by the applicant. A paucity of detail on the merits will
exacerbate matters for a creditor who has failed to fully
explain the
cause of the delay. An applicant thus acts at his own peril when a
court is left in the dark on the merits of an intended
action, eg
where an expert report central to the applicant's envisaged claim is
omitted from the condonation papers.
[38] Absence of unreasonable prejudice falls to be
decided separately as a specific requirement to be met by an
applicant. Whereas
good cause primarily concerns the applicant's
conduct and its motives, the absence of unreasonable prejudice shifts
the focus onto
the State organ and the protection of its interests by
receiving timeous notice. The DLA serves as a good example in the
present
case as to why this requirement must be met. It has a large
staff component dealing with many matters relating to the vast tracts
of land it administers on behalf of the State. It plainly requires
adequate time to sift, analyse, prioritise and decide on matters
before entering into litigation.
14
[39] Condonation must be applied for as soon as the
party concerned realises that it is required.
15
The onus to satisfy the court that all the requirements under s 4(b)
of the Act have been met, is on an applicant, although a court
would
be hesitant 'to assume prejudice for which (a) respondent itself does
not lay a basis'.
16
[40] As stated above, in deciding the present appeal, I
will have regard principally to the company’s version of events.
The company,
as Du Plessis correctly observes, 'had to search for
its defendant' in the intended action for damages arising from the
devastation
allegedly wreaked by the fire. While there can hardly be
any quarrel with the enlisting of De Ronde's services fairly soon
after
the fire, the investigation into ascertaining the identity of
the landowner had a distinct lack of urgency about it.
[41] Counsel representing the company submitted that the
lack of urgency can best be explained on the basis that the company
took
the view that the three year prescription period was the outer
time limit within which it had to conduct and finalise its
investigations.
In my view, it is that attitude that was the
company’s undoing.
[42] De Ronde's brief was most certainly not to
ascertain the identity of the debtor – his sole mission was to
locate the origin
of the fire because that is where his expertise
lay. The company failed to provide any explanation for the period of
inaction until
De Ronde's report was received at the end of April
2004. Aerial photographs which could easily be obtained and which it
had in its
possession would have assisted at an early stage to
identify the surrounding farms and plantations, the ownership and/or
control
of which could have been investigated at an earlier stage.
[43] As stated above, the approach to SAFCOL and in
particular to Raath appears to have been made for the first time in
January 2006.
On Du Plessis’ own version of events, SAFCOL because
of its history and operations in the area was the most likely
profitable source
of any investigation into ownership of surrounding
land. No reason suggests itself (and none was advanced before us) why
the company
did not, during this period of more than six months while
De Ronde was busy executing his specific mandate, approach SAFCOL or

Raath. On Du Plessis’ own description of the steps he took to
ascertain the identity of the owner or controller of the land in
question he left the most probable source of information as his last,
rather than first port of call.
[44] Rance only started his enquiries after De Ronde’s
report was obtained. With his local knowledge and ability in isiXhosa
one
would have expected a prompt investigation rather than the delays
referred to above.
[45] The State featured very strongly at a very early
stage as the most likely landowner. Even though the DWAF reared its
head as
the most likely contender the only other likely State
department, given the nature of the area, is that headed by the
Minister. A
notice to one or both of these departments would have
placed the company in a much stronger position in arguing its
entitlement to
a condonation order.
[46] I have alluded to the six month period of inaction
while De Ronde was doing his investigations. The applicant's inertia
continued
beyond this period and, troublingly, to an even greater
extent. After the first unsuccessful enquiry to the Pretoria Deeds
Office
on 15 July 2004, nothing at all happened until 30 January
2006. This lengthy lull of some seventeen months is not explained at
all
by the applicant.
[47] A 70-year lease agreement between AFC and the State
was concluded on 1 April 2005. In an attached schedule the leased
property
is described as, inter alia, 'CATA plantation' and 'portion
of the farm Nyameni' and the DLA was reflected as the owner of the
land.
Apart from denying that the lease applied to the land in
question, Du Plessis complained in reply that the agreement is almost
two
hundred pages long. But that misses the point. Du Plessis knew
very well what he was looking for – the identity of the landowner.
The land in question lies alongside the leased land and this would
have been a strong indicator that the DLA was the likely owner.
Du
Plessis did not have to peruse the entire document (if this was too
burdensome an exercise), since the relevant information was
contained
in the schedule. Moreover, AFC as the owner of the Kubusi plantation
also had a pending claim for damages arising from
the same fire and
was being represented by the same firm of attorneys as the applicant
(viz Du Plessis' firm). Du Plessis Stated
that AFC's claim was being
investigated simultaneously with that of the applicant. There is no
reason why the applicant could not,
by exercising the necessary
diligence, have given notice shortly after 1 April 2005 when the
information in the lease had become
available.
[48] Du Plessis' affidavit lacks the necessary detail to
qualify as a full and detailed explanation for the delay in relation
to which
the company sought condonation. A few examples suffice:
(i) He avers that, at an early stage in the
investigation, he had visited the scene on more than one occasion. He
does not provide
any dates of these visits.
(ii) In the same vein, he does not say when exactly he
and Rance made numerous enquiries in the Stutterheim district and in
the surrounding
area.
(iii) No dates are furnished in respect of Du Plessis'
consultation of SAFCOL's State forest and plantation maps.
(iv) There is no explanation why De Ronde's
investigations took more than six months to complete.
[49] Counsel for the company submitted that its
investigations were not directed solely at identifying the owner of
the land in question
but that it stretched beyond that to determine
who controlled the land in question. It is clear from the relevant
provisions of the
FFA that ownership ought to be a primary focal
point.
[50] On the paucity of information supplied by it the
company’s prospects of success cannot be measured even on the most
preliminary
basis. This is exacerbated by the problems attendant upon
a claim for loss of profits based on the destruction of the property
of
another. That is an issue on which I do not intend to say anything
further.
[51] For all the reasons set out above the company
failed to establish good cause for condonation in terms of s
3(4)
(b)
(ii). The court
below did not properly apply its mind to the factors set out above.
For that reason alone condonation ought not to
have been granted.
[52] An applicant who seeks condonation in terms of the
Act must show that the relevant organ of State was not unreasonably
prejudiced
by its failure to give timeous notice.
17
The court a quo
found
that the respondent failed to show that it was prejudiced by the
delay. This is a material misdirection as the court below reversed
the onus.
[53] The respondent set out in some detail the
unreasonable prejudice it had allegedly suffered as a consequence of
the delay. These
relate primarily to its inability to conduct its own
investigations into the cause and origin of the fire. It was common
cause that,
in the course of his investigation, De Ronde had collated
extensive information in respect of, inter alia, the prevailing
weather
conditions at that time, the origin and direction of travel
of the fire, satellite imagery, aerial photographs and charts,
temperature
and humidity histograms, wind speed and direction, fuel
model maps and fire simulation runs. De Ronde's report containing
this information
was, notwithstanding repeated requests by the
respondent, only made available to the respondent after the
condonation application
had been launched. This information would
quite obviously have been of considerable use to the Minister’s own
experts in conducting
their investigations. The company's response
that this information was in the public domain is not persuasive.
[54] The applicant alludes to the site inspection to
support its submission in relation to the absence of prejudice to the
Minister.
The site inspection arranged by the company's
representatives proved to be of no assistance. The land in question
was observed from
a distant hilltop and no proper inspection was
held. As the respondent correctly points out, prompt investigation of
fire claims
are critical. Changes in climate, vegetation and so forth
can markedly prejudice any investigation. The respondent would, as is
contended
on her behalf, in all likelihood have engaged the services
of her own fire expert to collate and analyse data obtained. In the
present
matter it was expected of the respondent to conduct such
investigations some three years after the fire. The prejudice is
self-evident.
[55] The applicant succeeded in the court below in its
condonation application. The declarator sought in the alternative was
therefore
not necessary. As pointed out above, it was the granting of
the condonation order that was the subject of the present appeal.
However,
the reasons propounded above in respect of the good cause
requirement hold good for the contention that the applicant's letter
of
16 February 2006 constituted compliance with the relevant
legislative requirements. More particularly, it cannot be said,
having
regard to the provisions of s 3(3)
(a)
that the company could not, by exercising reasonable care, have
acquired knowledge earlier of the identity of the relevant organ
of
State. As set out above, Du Plessis could have obtained the relevant
information if he had acted sooner and more diligently. The
contention that the six month period started running only in January
2006, when the information as to DLA being the probable landowner
was
gleaned from Raath, is without merit and can be rejected without
more.
[56] One aspect remains, namely the striking out order
by the court below. The parties were agreed that, whatever the
outcome of the
appeal, the said order remains extant.
[57] For all the reasons set out above, the following
order is made:
1 The appeal is upheld with costs, including the costs
of two counsel.
2 The order of the court below is set aside and
substituted with the following:
'1 The application for condonation in terms of
paragraphs 2 and 3 of the Notice of Motion is dismissed with costs,
including the costs
of two counsel.
2 The respondent's application to strike out the
replying affidavit, with the exclusion of paragraphs 26, 27, 28, 45
and 84 is granted
with costs, including the costs of two counsel.'
__________________
S A MAJIEDT
ACTING JUDGE OF
APPEAL
APPEARANCES:
For appellant: E A S Ford SC
S Rugunanan
Instructed by:
State Attorney
Port Elizabeth and Bloemfontein
For respondent: S C du Plessis SC
T van der Walt
Instructed by:
Morajane du Plessis Inc
Webbers Bloemfontein
1
See also in this regard
Madinda v Minister of Safety &
Security
2008 (4) SA 312
(SCA);
[2008] ZASCA 34
para 6.
2
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) para 9.
3
Mohlomi
para 9.
4
Para11
5
'DWAF' is a commonly used acronym for the
Department of Water Affairs and Forestry.
6
D
u Plessis’ law offices are located within the
SAFCOL building.
7
37 of 1984, repealed by the Eastern Cape
Traditional Leadership and Governance Act 4 of 2005.
8
See
Madinda
para 9.
9
Van Wyk v Unitas Hospital & Another
(Open
Democratic Advice Centre as
Amicus
Curiae
)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) para 20, and
cases referred to there.
10
Van Wyk
para 22.
11
1954 (2) SA 345
(A).
12
At 352H-353A.
13
Per Heher JA in
Madinda
para 12.
14
Cf
Mohlomi
para 9.
15
Madinda
para 14.
16
Madinda
para 21.
17
Section 3(4)
(b)
(iii)
of the Act;
Madinda
para 21.