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[2023] ZAECMKHC 97
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Simanga v South African National Roads Agency SOC Ltd (1532/2022) [2023] ZAECMKHC 97 (12 September 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
OF INTEREST
Case no: 1532/2022
In
the matter between:
SIYABULELA
SIMANGA
Applicant
and
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY
SOC LTD
Respondent
(Registration
Number: M199[…])
JUDGMENT
Govindjee J
Background and facts
[1]
The
applicant was injured in a motor vehicle accident on 20 May 2019 on
the N6 road between Cathcart and Stutterheim (‘the
N6’).
He instituted action for damages for head injuries caused when he
drove over a pothole, alleging negligence on the
part of employees of
the respondent (‘SANRAL’). SANRAL filed a special plea
alleging non-compliance with the provisions
of the Institution of
Legal Proceedings against Certain Organs of State Act, 2022 (‘the
Act’).
[1]
The opposed
application for condonation followed.
[2]
The
founding affidavit explains that the applicant received incorrect
legal advice that the road on which the collision occurred
was a
provincial road.
[2]
That
misapprehension was only corrected on 13 May 2022, well outside the
prescribed six-month period. A demand for payment was
immediately
transmitted to SANRAL by email and summons was issued and served a
day before the matter prescribed on 19 May 2022.
[3]
The
blame for the delay is placed on the shoulders of a paralegal working
for the applicant’s Johannesburg attorneys of record
(‘Zuma’).
[3]
The
founding affidavit suggests that it was only on ‘23 September
2022’ that this individual realised that the collision
had
occurred on a national road operated and maintained by SANRAL.
[4]
A further oversight occurred courtesy of the chosen legal
representatives. The applicant’s demand was not provided to the
Chief Executive Officer of SANRAL. He submits, however, that these
matters did not prejudice SANRAL whatsoever and, in reply, indicates
that he is a lay person with no legal knowledge.
[4]
SANRAL acknowledges the ‘timeous’
service of summons. Nonetheless, it persists in raising an
in
limine
prescription point on the basis
that various failures in respect of the provision of notice rendered
the summons defective, so
that the claim had prescribed. SANRAL also
denies that the applicant was injured in a motor vehicle collision as
claimed, and further
denies any obligation to compensate him for
injuries sustained, highlighting non-compliance with ss 3 and 4 of
the Act. While SANRAL
does not dispute the averment that the
applicant’s representatives only realised the status of the N6
on 23 September 2022,
it notes that this delay ‘leaves much to
be desired’ and that Mr Siyabulela may have a claim against
them for negligent
conduct. In particular, SANRAL argues that the
applicant has failed to plead or prove its prospects of success in
the main action
and further failed to account for ‘the delay of
35 months’ in serving the s 3(1) notice. It alleges prejudice
on the
basis that, as an organ of state, it must be afforded a 30-day
period within which it may consider such a claim, and because it
has
been forced to engage its own legal representatives in order to
oppose a claim with minimal prospects of success.
[5]
The applicant argues that it is apparent
that SANRAL, even on its own version, has suffered no recognisable
prejudice because of
the failure to serve proper notice in terms of
the Act, and that there are good prospects of success so that it is
in the interests
of justice for condonation to be granted.
The condonation
requirements
[6]
The
application is premised on s 3(4) of the Act.
[5]
Interpreting the requirements stipulated in the Act requires
appreciation of s 39(2) of the Constitution, so that a generous and
purposive interpretation may be given. Refusing the application would
adversely implicate the applicant’s constitutional
right to
access to court in order to advance the merits of his claim. This is
an important consideration, particularly where the
entire basis for
the need to apply for condonation is the ineptitude of the
applicant’s chosen representatives. This is not
to suggest that
proper compliance with the set requirements may be overlooked. The
requirements to be considered before a court
may be ‘satisfied’
that condonation ought to be granted are conjunctive and are to be
established by the applicant.
[6]
[7]
The
first requirement is that ‘the debt has not been extinguished
by prescription’. In
Minister
of Safety and Security v De Witt
[7]
(‘
De
Witt
),
the SCA considered the question whether a court could condone the
failure to give notice, or the giving of defective notice,
after
legal proceedings had been instituted but before the expiry of the
prescription period. This included consideration of service,
before
the prescriptive period had ended, of a notice not in compliance with
s 3(2) of the Act.
[8]
A
strict approach to interpretation was held to lose sight of the
purpose of condonation.
[8]
The
SCA concluded that either a complete failure to send a notice, or the
sending of a defective notice, entitled a creditor to
make
application in cases where the state relied on the creditor’s
failure to comply with the Act.
[9]
[9]
‘
Good
cause’, the second requirement, is linked to the failure to act
timeously.
[10]
It requires
consideration of all factors impacting on the question of fairness of
granting condonation, bearing in mind ‘the
proper
administration of justice’
[11]
and the ‘interests of justice’.
[12]
Relevant factors, to be assessed in a balanced fashion, may include
prospects of success in the proposed action, the reasons for
the
delay, the sufficiency of the explanation offered, the bona fides of
the applicant, and any contribution by other persons or
parties to
the delay and the applicant’s responsibility therefor.
[13]
[10]
As
will be illustrated, the case turns on the court being satisfied that
good cause exists for the applicant’s failure. A
survey of
decisions of the SCA, in particular, offers guidance on the point. In
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
,
[14]
the court
a
quo
granted condonation in circumstances where it was satisfied that
there was good cause for a two-year delay in service of the notice
and based on the respondent’s failure to demonstrate any
prejudice. This decision was overturned by the SCA, partly on the
basis that the company had erred by fixating on the three-year
prescription period when it could have acted with greater alacrity
in
its investigations as to the identity of the debtor.
[15]
[11]
The
cases reveal that courts are generally loathe to penalise a litigant
on account of the conduct of his legal representative.
[16]
There is, nonetheless, a limit beyond which a litigant cannot escape
the results of his attorney’s lack of diligence or the
insufficiency of the explanation tendered.
[17]
In
Madinda
v Minister of Safety and Security
(‘
Madinda
’),
[18]
the court
a
quo
refused condonation on the basis of ‘complete disinterest’
in the conduct of the appellant’s case and the consequent
failure to maintain contact with her attorney for a period in excess
of a year.
[12]
In
Ferreira
v Ntshingila
,
[19]
the SCA was confronted with an application for condonation (based on
non-compliance with the Uniform Rules) premised on an affidavit
filed
by a candidate legal practitioner.
[20]
The court bemoaned the failure of the supervising attorney to file an
affidavit explaining the level of oversight that had been
provided,
or omitted, in respect of the work at hand.
[21]
The question remained whether condonation should be granted in
circumstances where the merits of the matter were strong. The outcome
was that condonation was refused on the basis of the failure to
provide a full and satisfactory explanation for the delays that
had
occurred. This in circumstances where the attorney had acted with
gross negligence to the extent that the prospects of success
became
immaterial.
[22]
[13]
Finally,
in
Shange
v MEC for Education, KwaZulu-Natal
,
[23]
notice had been sent by the applicant’s attorney to the
national Minister of Education, rather than the respondent, in
circumstances
where the applicant was unaware of the error and the
attorney took responsibility for the oversight. Both the High Court
and SCA,
in
MEC
for Education, KwaZulu-Natal v Shange
(‘
Shange
’),
had no difficulty in holding that good cause had been established.
This in the following circumstances: ‘a devil’s
brew of
mistakes, failures and delays in the prosecution of applicant’s
case’ could not be attributed to the applicant,
and where those
responsible for looking after his interests had ‘failed him
miserably’; the applicant was not an ordinary
litigant but was
a minor seeking to advance a legitimate claim; the applicant was bona
fide and enjoyed strong, uncontested prospects
of success; and where
the importance of the case to the applicant was manifest.
[24]
[14]
It
is expected that the party seeking condonation will furnish a
sufficiently full explanation of their default, so that the court
is
able to assess the manner in which it arose, and the defaulter’s
conduct and motives.
[25]
The
explanation must cover the entire period of the delay and must be
reasonable.
[26]
As Heher
JA explained in
Madinda
:
[27]
‘
The
court must decide whether the applicant has produced acceptable
reasons for nullifying, in whole, or at least substantially,
any
culpability on his or her part which attaches to the delay in serving
the notice timeously.’
[15]
This
necessarily includes consideration of prospects of success.
[28]
A case without merit may render mitigation of fault pointless:
[29]
‘…
that
the merits are shown to be strong or weak may colour an applicant’s
explanation for conduct which bears on the delay:
an applicant with
an overwhelming case is hardly likely to be careless in pursuing his
or her interest, while one with little hope
of success can easily be
understood to drag his or her heels.’
[16]
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:
[30]
‘
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.’
[17]
Beyond
this, determination of good cause in each case depends on its own
facts.
[31]
[18]
The
third leg of the enquiry is separate and specific. It requires the
applicant to satisfy the court that SANRAL had not been unreasonably
prejudiced by the failure to serve the notice timeously:
[32]
‘
This
must inevitably depend on the most probable inference to be drawn
from the facts which are to be regarded as proved in the
context of
the motion proceedings launched by an applicant. The approach to the
existence of
unreasonable
prejudice (not simply any level of prejudice …) requires a
common sense analysis of the facts, bearing in mind that whether
the
grounds of prejudice exist often lies peculiarly within the knowledge
of the respondent. Although the onus is on an applicant
to bring the
application within the terms of the statute, a court should be slow
to assume prejudice for which the respondent itself
does not lay a
basis.’
Analysis
Has the debt
prescribed?
[19]
It
may be accepted that the claim for damages is a claim for the
recovery of ‘a debt’ as defined in s 1 of the Act.
[33]
The Act defines a ‘creditor’ to mean a person who
‘intends to institute legal proceedings’ or ‘who
has instituted such proceedings’. There is nothing to gainsay
the applicant’s averment as to the date of the collision.
The applicant has already instituted proceedings and is a ‘creditor’
for purposes of the Act. While SANRAL relies on
the papers on his
failure to serve a valid notice before proceedings were instituted,
De
Witt
confirms that he may apply for condonation in these circumstances. It
also establishes that the reference in s 5 to a bar to service
of
process before the expiry of a period of 30 days after the notice is
inapplicable to cases where notice has been served out
of time, as in
the present instance.
[34]
Ms
Memela
,
for SANRAL, rightly did not press the point. The result is that
SANRAL’s point
in
limine
must be refused.
[35]
Considering the papers, and SANRAL’s acceptance of timeous
service of summons, I am satisfied that the debt has not been
extinguished by prescription.
Does good cause
exist?
[20]
Summons
having been issued and served before the end of the prescriptive
period, the court enjoys a discretion to condone the late
service of
the notice.
[36]
The notice was
served approximately 30 months outside that stipulated by the Act. To
be ‘satisfied’, in terms of s
3(4)
(b)
requires a decision based on the ‘overall impression made on a
court which brings a fair mind to the facts set up by the
parties’.
[37]
It does
not require proof on a balance of probability.
[21]
The
applicant was injured while driving a motor vehicle and sought legal
advice soon after being discharged from hospital. Little
more could
have been expected. It is accepted that the applicant is a lay
person, prone to errors consistent with everything that
term implies.
He received dubious advice from the outset, but would not have had
any reason to question what he was told, for example
in respect of
the alleged duty on the part of the MEC, Department of Roads and
Transport Eastern Cape (‘the MEC’) and
the subsequent
institution of proceedings against the MEC during March 2022.
[38]
Initiating those proceedings would have required, inter alia, giving
instructions and consulting with his chosen representatives,
and some
level of activity on his part. Likewise when he was informed, during
May 2022, that the road was a national road to be
maintained by
SANRAL. At least his legal representatives then acted with haste in
ensuring the swift issue of summons.
[22]
That the legal representatives were
convinced that the MEC was the responsible entity is evinced by the
fact that the present action
was instituted against the MEC and
SANRAL and, in respect of the MEC, was only withdrawn on 20 October
2022. Disconcertingly, despite
being aware of the existence of the
Act, and presumably having considered its provisions as persons
trained in law, the representatives
appear to have been persuaded
that its requirements were completely inapplicable. This position
persisted even once the application
for condonation was launched, the
applicant being advised by Mr Kobrin, it must be accepted, that his
claim fell outside the purview
of the Act. The reason advanced for
this position beggars’ belief:
‘
As
my claim in this action is a delictual claim in which I claim damages
from the Second Defendant, I am advised that it cannot
be regarded as
a debt within the meaning of the Act as liability and the quantum of
my claim can only be determined by the above
Honourable Court at the
trial of this action and the claim only becomes a debt on the date of
its determination by the above Honourable
Court on trial of this
action.’
[23]
Mr
Knott
,
for the applicant, swiftly, and correctly, distanced himself from
this argument. The incongruous implication would be that a court
must
determine, in favour of the applicant, both liability and merits in
respect of an action launched against an organ of state
for delictual
damages, before the applicant will deign to issue a notice in terms
of the Act. This in circumstances where the Act
makes it clear that a
‘debt’ means ‘any debt arising from any cause of
action (a) which arises from delictual
… liability’.
[39]
[24]
Implausible as it may appear to be, the
papers reflect that this was the advice that was consistently given
to the applicant. The
implication of this is that it must be accepted
that the reasons for the delay must be laid at the door of the
applicant’s
legal representatives, rather than the applicant
himself. The representatives’ fixation with this erroneous
approach is borne
out by the inclusion of a footnote to the founding
affidavit, clearly at the instance of the applicant’s
representative,
to a decision of the Gauteng Local Division of the
High Court in support of the position adopted. Untenable as that
position is,
it cannot be denied that the applicant has provided a
full explanation of the reasons for the delay. He has done so bona
fide and
the explanation offered is assessed as being sufficient and,
in respect of his own conduct, reasonable. Upon careful scrutiny, and
as was the case in
Shange
,
the papers reveal that the responsibility for the delay has been
caused entirely by the conduct of other persons. There is simply
no
basis to find that the applicant was himself responsible for any part
of the delay, which was based on persistent adherence
to an incorrect
understanding of law. To answer the question posed by
Madinda
,
the applicant has produced acceptable reasons for nullifying in whole
any culpability on his part which attaches to the delay
in serving
the notice timeously.
[25]
There
is a paucity of information which makes it difficult to assess the
prospects of success with any precision.
[40]
I accept
Ms
Memela’s
argument
that, considering the failure to provide sufficient detail about the
pothole in question, it cannot be said that the prospects
are good.
The risk of deficiencies in this respect lies with the applicant.
Added to that, on the applicant’s own version
an oncoming
vehicle caused him to swerve his vehicle immediately prior to hitting
the pothole which he alleges caused him serious
injury. Considering
the level of detail provided in the particulars of claim, and in the
absence of supporting documentation, the
prospects of success are
even at best.
[26]
At first blush, a survey of the cases
suggests that the applicant must suffer the consequences of the
conduct of his representatives.
A more considered approach on their
part would have obviated the need for these proceedings. Unlike
Madinda
,
however, it cannot be said that the applicant himself demonstrated
complete disinterest in his case, or that there would have
been any
basis to expect him to have cause for concern as to the pace or
manner of the litigation from the time he first gave instructions.
This also distinguishes the present proceedings from
Rance
.
The decision in
Ferreira
must be considered in the context of a failure to comply with the
Uniform Rules where the respondent’s interests in the finality
of a judgment already obtained was a crucial factor. Following
Shange
, it
is unnecessary to devote too much attention to detailing the problems
with the way the case was handled in circumstances where
there is no
basis for attributing this to the applicant. As in
Shange
,
the applicant would have been unaware of the errors and the legal
representatives, in essence, take responsibility for the oversight.
What is of concern, and must be noted, is that the papers have been
crafted in a manner that places the bulk of the blame on Zuma.
As in
Ferreira
,
Mr Kobrin, the attorney, has not explained the level of supervision
provided to Zuma, or any independent attention to the matter,
including how it came about that it took some three years to realise
that the N6 is a national road for which SANRAL is responsible.
This
impacts on the costs order to follow.
[27]
Considering the relevant factual complex in
a balanced fashion, and despite the limited assessment of the
prospects of success,
it would be unjust to deny the applicant a
trial on the merits. The court enjoys a wide discretion which is
exercised in favour
of the applicant in the interests of justice.
Is there unreasonable
prejudice?
[28]
I
am mindful of the Act’s rationale to ensure that state organs,
with their extensive bureaucracy, are afforded sufficient
opportunity
to investigate and consider cases launched against them. Very
little prejudice, if any, has been alleged by SANRAL
on the papers.
What is cited is certainly not the kind of prejudice that constitutes
‘unreasonable prejudice’. Complaining,
as an organ of
state, that legal practitioners have had to be briefed to oppose
these proceedings, and highlighting the obvious
benefits of timeous
notice, falls short of the test. As in
Shange
,
the complaint of prejudice is general and unspecified and unrelated
to any facts that indicate prejudice.
[41]
My overall impression is that SANRAL was not unreasonably prejudiced
by the applicant’s failure.
The discretion to
condone
[29]
Having
assessed the three requirements for condonation, the court is in a
position to consider whether to exercise a discretion
to grant
condonation according to the established principles.
[42]
This includes an assessment of the combined weight to be attributed
to the three elements of s 3(4)
(b)
[43]
and consideration of unexplained periods of delay in instituting
condonation proceedings after the notice was
de
facto
given.
[44]
Despite the
suggestion in the Act that a creditor may await correspondence from
an organ of state, confirming its intention to
take the point, before
launching an application for condonation, upon which
Mr
Knott
relied,
this is not the position of the SCA. The period between May 2022,
when the notice was sent, and November 2022, when the
application was
launched, should have been fully explained. This is because the
application should have been brought as soon after
the default as
possible in order to alleviate possible further prejudice to the
other party.
[45]
As in
Madinda
,
however, such delays cannot fairly be ascribed to disinterest on the
part of the applicant. But the failure to have brought the
application earlier is a further reason to censure the applicant’s
legal representatives.
[46]
I
intend to do so in respect of costs.
Costs
[30]
An
application for condonation in terms of the Act is unrelated to court
procedure. The applicant seeks permission to enforce a
right. Where
such an application is opposed, costs will typically follow the
result.
[47]
[31]
It is unnecessary to repeat the various
concerns raised about the quality of legal representation that has
been provided to the
applicant by his attorneys. At the very least,
this warrants no order as to costs, which is the order to be made.
Order
[32]
The following order is made:
1.
Condonation is granted for the applicant’s
failure to serve the notice contemplated in s 3(1)
(a)
of the Institution of Legal Proceedings Against Certain Organs of
State Act 40 of 2002 (‘the Act’) within the period
laid
down in s 3(2)
(a)
of the Act.
2.
Condonation is granted for the applicant’s
failure to serve notice on the chief executive officer of the
respondent in terms
of s 4(1)
(e)
of the Act.
3.
There is no order as to costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
07 September 2023
Delivered:
12 September 2023
Appearances:
Counsel
for the Applicant:
Adv
JA Knott
Chambers,
Makhanda
Instructed
by:
Bove
Attorneys Inc.
Applicant’s
Attorneys
Orchards
Law Chambers
33
The Avenue
Orchards
Johannesburg
Tel:
011 485 0424
C/o:
Cloete
& Company
112
A High Street
Makhanda
Tel:
046
622
2563
Counsel
for the Respondent:
Adv
NA Memela
Chambers,
Johannesburg
Instructed
by:
Letsela
Nkondo Inc. Attorneys
Respondent’s
Attorneys
41
Hans Van Rensburg Street
Polokwane
Tel:
051 880 2031
C/o:
Huxtable
Attorneys
26
New Street
Makhanda
Tel:
046 622 2692
[1]
Act
40 of 2002.
[2]
He
consulted with his Johannesburg attorneys ‘soon after’
being discharged from hospital, although that date is unspecified.
His affidavit reveals that he was unaware as to whether the N6 was a
national road.
[3]
Zuma
erroneously advised the applicant that the N6 was not a national
road, so that the focus was on a claim against the MEC,
Department
of Roads and Transport Eastern Cape (‘the MEC’). This is
evinced by an action launched against the MEC
and only withdrawn on
20 October 2022.
[4]
This
in circumstances where the applicant confirms, in his founding
affidavit, that his attorneys received information four months
previously that ‘[the N6] may not have been a provincial road
and that it could have been a national road it being a matter
of
common cause that [SANRAL] was responsible for the maintenance of
all national roads … and that as a matter of fact
it would
have been liable to me for payment of my damages’. It is
difficult to square these averments.
[5]
In
essence, no legal proceedings for the recovery of a debt may be
instituted against an organ of state unless the creditor has
given
that organ of state notice in writing of the intention to institute
legal proceedings. The notice must be served on the
organ of state
within six months from the date on which the debt became due. A
court may grant an application for condonation
if it is satisfied
that: i) the debt has not been extinguished by prescription; good
cause exists for the creditor’s failure;
and the organ of
state was not unreasonably prejudiced by the failure.
[6]
See
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010 (4) SA 109
(SCA) (‘
Rance
’)
para 11.
[7]
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009
(1) SA 457
(SCA) para 5.
[8]
Ibid
para 10.
[9]
Ibid
para 10.
[10]
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) (‘
Madinda
’)
para
14.
[11]
Ibid para 10.
[12]
Rance
above
n 6 para 35.
[13]
Madinda
above
n 10 paras 10, 12. The fact that the applicant is strong in certain
respects and weak in others must be borne in mind in
the evaluation
of whether the standard of good cause has been achieved:
Madinda
above n 10 para 13.
[14]
Rance
above
n 6.
[15]
Rance
above
n 6 para 41 and following.
[16]
See,
for example,
Regal
v African Superslate (Pty) Ltd
1962
(3) SA 18
(A) at 23.
[17]
See
Saloojee
and Another NNO v Minister of Community Development
1965 (2) SA 135
(A) at 141B – D, a case dealing with
condonation of non-observance of Rules of Court.
[18]
Madinda
above
n 10.
[19]
Ferreira
v Ntshingila
1990
(4) SA 271 (A).
[20]
It
must be noted that principles emerging from cases dealing with
non-compliance with court procedure should not be applied
uncritically to the requirement of good cause in s 3(4) of the Act:
Premier,
Western Cape v Lakay
2012 (2) SA 1
(SCA) (‘
Lakay
’)
para 14.
[21]
Ferreira
above
n 19 at 280E – F.
[22]
Ibid
at 281G – 282B.
[23]
Shange
v MEC for Education, KwaZulu-Natal
2012
(2) SA 519 (KZD).
[24]
Ibid
paras 35, 37, 38;
MEC
for Education, KwaZulu-Natal v Shange
2012 (5) SA 313
(SCA) (‘
Shange
’)
para 16 and following.
[25]
Madinda
above
n 10 para 11, citing
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 352H – 353A. In
Lakay
,
the SCA referred to ‘an explanation of the default
sufficiently full to enable the court to understand how it really
came about …’:
Lakay
above
n 20 para 17.
[26]
Rance
above
n 6 paras 35, 48.
[27]
Madinda
above
n 10 para 12.
[28]
Rance
above
n 6 para 37.
[29]
Madinda
above
n 10 para 12.
[30]
Rance
above
n 6 para 37.
[31]
Lakay
above
n 20 para 17.
[32]
Madinda
above
n 10 para 21.
[33]
The
cause of action is a delictual claim for damages relating to
SANRAL’s alleged omission to have acted in terms of its
statutory obligations, as detailed in the particulars of claim.
SANRAL is an organ of state.
[34]
De
Witt
above
n 7 para 20: nothing in s 5 overrides the court’s power to
condone the giving of defective notice.
[35]
Ibid
paras 14, 15. To emphasise the point, the judgment adds that
condonation might be granted even in cases where no notice has
been
served whatsoever: para 18.
[36]
Madinda
above
n 10 paras 11, 21.
[37]
Ibid
para 8.
[38]
As
an aside, the papers fail to explain what transpired between 19 May
2020, when a letter was seemingly drafted holding the MEC
accountable, and including reference to the Act, and precisely one
year later, when it was sent.
[39]
S
1 of the Act.
[40]
See
Rance
above
n 6 para 50.
[41]
Shange
above
n 24 para 22.
[42]
Madinda
above
n 10 para 16.
[43]
Ibid
para 29.
[44]
Ibid
para 20.
[45]
Ibid
para 28; Cf
Shange
above
n 24 para 24.
[46]
Ibid.
[47]
Lakay
above
n 20 para 25.