IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CIRCUIT LOCAL DIVISION OF THE WESTERN CAPE
(HELD AT GEORGE, THEMBALETHU)
REPORTABLE
CASE NO: 921/2023
In the matter between:
SWANVEST 11 (PTY) LTD Applicant
and
THE WESTERN CAPE PROVINCAL MINISTER
OF TRANSPORT AND PUBLIC WORKS Respondent
Bench: P.A.L. Gamble,
Heard: 6 March 2024
Delivered: 18 March 2024
This judgment was handed down electronically by circulation to the parties'
representatives via email and release to SAFLII. The date and time for ha nd-down is
deemed to be 14h00 on Monday 18 March 2024.
JUDGMENT
____________________________________________________________________
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GAMBLE, J:
INTRODUCTION
1. The applicant owns a 5 store y commercial building in George known as
Rentzburghof (the premises) , which has a let able area of some 4500 sq.metres. On
13 June 2016 it concluded a written agreement of lease for the premises with the
respondent (the Department) for five years effective from 1 March 2016 to 28
February 2021. The material terms of the lease will appear more fully hereunder.
2. The applicant says that upon the conclusion of the lease at the end of
February 2021 the Department failed to restore vacant possession and beneficial use
of the premises to it, thereby breaching the terms of the lease. It claims further
breaches of the lease in the Department’s alleged failure to leave the premises in
good order and condition, to reinstate t hem to their original condition, a failure to
deliver the keys to the applicant and a failure to pay certain additional charges in
respect of the premises during the period March 2021 to January 2022, wh ile the
applicant was deprived of vacant occupation.
3. On 16 August 2023 the applicant issued summons out of this court
against the Department claiming damages in the sum of R6 871 170,64 arising out of
its alleged breaches as aforesaid. There are 4 causes of action pleaded as Claims A
to D respectively. In its particulars of claim the applicant made the customary
allegation in matters such as this relatin g to its alleged compliance with s3 of the
Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002 (the
Act) through the issuing of the prescribed statutory notice (the notice).
“18. The Plaintiff has delivered the required notice in terms of section 3 of Act 40 of 2002, and
the Defendant has acknowledged receipt thereof. Copies of the notice and acknowledgment
are attached hereto as Annexures “POC4” and “POC5” respectively.”
I pause to point out that Annexure POC4 is dated 21 February 2023 and appears to
have been sent by email. Annexure POC5 is dated 3 March 2023 and similarly was
sent by email.
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4. On or about 9 November 2023 the Department filed a plea on the merits
disputing liability and, in addition, filed a special plea in which it disputed the validity of
the notice.
“SPECIAL PLEA
1. Ex facie the Particulars of Claim, the cause of action sued upon in respect of Claims A and
B arose on 23 April 2021 the date of the Plaintiff’s notice and demand at Annexure “POC2”1.
2. Ex facie the Particulars of Claim, the cause of action sued upon in respect of Claims C and
D arose on 1 March 2021 the date averred that the Plaintiff was deprived of vacant position
and beneficial use of the premises.
3. Notice in terms of [the Act] was served on the defendant on 21 February 2023, more than
six months after the claims arose.
4. The Defendant has not consented in writing to the institution of legal proceedings in terms
of section 3(1)(b)(ii) of the Act.
5. The Plaintiff has not applied for condonation for its failure to comply with section 3(2)(a) of
the Act.
6. This Honourable Court has not condoned the failure of the Plaintiff to comply with the
provisions of the Act and has not granted leave to the Plaintiff to institute legal proceedings
against the Defendant.
7. In the premises the Plaintiff’s claims do not comply with section 3 of the Act and therefore
the Plaintiff was not duly authorized to institute legal proceedings against the Defendant.
WHEREFORE the Defendant prays that Claims A to D be dismissed, with costs.”
1 Annexure POC 2 is a lengthy email dated 23 April 2021 from a representative of the applicant, Mr.
van Schalkwyk, to Messer’s Brand and Arendse of the Department setting out the applicant’s position
flowing from the Department’s alleged failure to afford the applicant vacant possession of the premises.
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5. As a consequence of the point taken in the special plea, and on 30
November 2023, the applicant launched the present application requesting
condonation under ss3(4)(a) and (b) of the Act for its failure to file the notice
timeously. It further sought the Court’s leave under s3(4)(c) of the Act to proceed with
the action. At the hearing of the opposed application in this Court on 6 March 2024,
the applicant was represented by Mr. W. King SC and the Department by Ms. R.
Nyman SC.
THE RELEVANT PROVISIONS OF THE ACT
6. S3(1) of the Act stipulates that no legal proceedings for the recovery of a
debt from an organ of state such as the Department may be instituted unless the
creditor has given written notice to the Department of its intention to institute
proceedings or the Department has consented to the institution of such proceedings.
In terms of s2 of the Act the notice must be served on the Department within 6 months
of the date on which the debt became due and must set out the facts giving rise to the
debt and such particulars of the indebtedness as are known to the creditor.
7. S3(4) of the Act, which falls to be considered in this judgment, reads as
follows.
“3(4)(a) If an organ of state relies on the 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.”
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8. It is common cause here that the notice served by the applicant on 23
February 2023 comp lies with the requirements of s3(1)(a) and, further, that the debt
has not prescribed. The issues are whether the applicant has established good cause
under s3(4) (b)(ii) and the absence of unreasonable prejudice on the part of the
Department under s3(4)(b)(iii).
THE MANDATED APPROACH IN CASU
9. Much has been written over the years regarding the correct approach in
matters such as these. In order to avoid an unnecessarily prolix contribution thereto, it
will suffice if I refer now only to the decision of the Supreme Court of Appeal (SCA) in
CJ Rance 2, a matter involving a damages claim for a fire which destroyed a
plantation.
“[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.
[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. 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.
2 Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA)
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[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
‘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'.
[37] The prospects of success of the intended claim play a significant role – 'strong merits
may mitigate fault; no merits may render mitigation pointless.' 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.
[39] Condonation must be applied for as soon as the party concerned realises that it is
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required. 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'.” (Internal references otherwise omitted)
10. As far as the prospects of success are concerned, th e applicant limits
itself to a short allegation in its founding affidavit that these exist and it refers the
Court to its particulars of claim in the main action. As pithy as that allegation may be, I
am satisfied, having regard to the background facts alleged in the affidavits, that the
particulars of claim (read in the context of the plea on the merits) certainly make out a
prima facie case for relief. This criterion is thus met by the applicant and no more
need be said in that regard.
11. The nub of the application turns on the criteria rela ting to good cause
and the absence of reasonable prejudice to the Department. In order to consider
these criteria it is necessary to set out the salient facts of the matter.
THE RELEVANT FACTS
12. During the currency of the lease the Department concluded a sub-lease
for 1600 sq. metres of the premises with the South African Social Security Agency
(SASSA). This was to be used, inter alia, as a service point for recipients of social
security grants. It is not clear when the sub -lease was concluded3 but, whenever that
was, the applicant acquiesced therein and did n ot take issue with SASSA’s presence
on its premises.
13. When the lease terminated through the effluxion of time at the end of
February 2021 , SASSA still occupied its part of the premises . It seems as if the
applicant was hesitant to seek the immediate eviction of SASSA from the premises as
it appreciated the social importance of its function and that it contemplated the
3 Cl 24.1 and 24.2 of the lease provide that during the first three years of the lease the Department was
permitted to sub -lease the premises (or any portion thereof) with the prior written consent of the
applicant and after the expiry of that period , the Department was entitled to sub-lease without the prior
written consent of the applicant.
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conclusion of a further lease with SASSA as its tenant. Be that as it may, it is common
cause that on 26 February 2021 the applicant’s Mr. Daniel van Schalkwyk (the
manager for property management and finance) and the duly authorized
representatives of the Department (Messer’s Edwellin Arendse and Kobus Brand)
conducted a “walk through” of the premises. It was then agreed that the Department
would submit to the applicant a detailed list of repairs that it considered needed to be
done to the premises to restore them to the requisite condition and th at the applicant
could thereafter supplement or amend such list.
14. The issues discussed at the meeting were recorded by Mr. van
Schalkwyk in an email to the Department dated 3 March 2021.
“After a walk through the building it was agreed:
1. The lessee will submit to the landlord a letter containing the remedial work to be done by
the lessee, whereafter the landlord will comment thereon.
2. Two floors of the building could not be accessed due to unavailability of keys . The parties
would meet on 1 March 2021 at 11h00 at the building for the inspection thereof.
3. Lessee will approach SASSA to expedite finalization of a future lease with the landlord.
4. The landlord place (sic) on record inter alia that:
4.1 The lessee is still occupying the building in that
4.1.1 SASSA occupies a section
4.1.2 The keys are with the lessee
4.1.3 Security is responsibility of same
4.1.4 The lessee has to do remedial work to the inside before hand
over
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4.1 (sic) The lessee is expected to continue paying rental (the February 2021
amount plus 5.5% escalation) monthly in advance ex 1 March 2021.
5. It is placed on record for negotiation purposes that the landlord is prepared to negotiate a
monetary settlement in respect of 4.1.4 above.”
There was no response to that email from the Department’s representatives.
15. On 25 March 2021, Mr. van Schalkwyk wrote a follow -up email
reminding the Department of the agreement of 26 February 2021.
“Our minutes of the 26th February meeting sent to you on 3 instant refers.
1. Just a friendly reminder that we still await your:
• Letter agreed upon in paragraph 1
• Assistance regarding paragraph 3. We made contact with your sub lessee
(who occupies a section of the building namely SASSA Western Cape) who indicated
that they are prepared to pay us an amount equal to what they paid you monthly;
however, we if we are successful in our endeavours with SASSA any payments will be
received without prejudice to our rights as contemplated in paragraph 4.1.4 and par
4.1 at the end of paragraph 4.1.
• Payment as per paragraph 4.1
2. We also confirm that the factual situation as described in paragraph 4.1.1 to 4.1.3 is
unchanged and we specifically thank you for keeping your security team at the premises,
safeguarding same whilst you are still occupying the building.”
The following day Mr. Brand emailed the applicant and indicated that the Department
was attending to the matter and would respond as soon as possible.
16. As the email of 3 March 2021 suggests, i n terms of cl 11.6 the
Department was obliged to restore the premises to the satisfaction of the applicant at
10
the end of the lease and under cl 11.7 the applicant was entitled to recover the cost
incurred in restoring the premises to that condition. I recite those clauses in full.
“11.6 If the tenant, at the expiry or termination of the lease or when it eventually vacates the
leased premises, has not, yet properly repaired the leased premises to the reasonable
satisfaction of the landlord in terms of that sub -clause, the landlord may have the alterations
and additions removed and the leased premises repaired at the tenant’s expense. Any
additions thus removed shall become the property of the landlord without him having to
compensate the tenant for them.
11.7 The tenant shall on demand pay to the landlord the amount of expenditure that still has
to be incurred by the landlord for the remova l and repairs mentioned in sub -clause 11.6. A
certificate signed by an architect of the landlord and in which the amount of expenses is
stated, shall be prima facie proof of the amount due, and that the tenant is liable to pay it. This
provision shall not prejudice the landlord’s right to claim damages for loss of rent and
additional charges from the tenant if the leased prem ises, when vacated, cannot be l et
because the alterations and repairs have not yet been effected to the satisfaction of the
landlord.”
17. The applicant says in the founding affidavit that it attempted to arrange a
meeting with Mr. Brand, its architect and its representatives for 5 May 2021 for
purposes of discussing the remedial work that needed to be done . It goes on to say
that no one arrived to represent the Department at that meeting . After Mr. van
Schalkwyk had called Mr. Brand, a certain Mr. Hendricks arrived an hour late and only
remained in attendance briefly. Mr. Hendricks’ attitude was that the Department had
made several alterations and improvem ents to the premises and that the cost thereof
should be offset against any damages to the premises.
18. On 17 May 2021 Mr. van Schalkwyk addressed Messer’s Arendse and
Brand in a lengthy email. The contents refer to various aspects regarding the poor
condition of the building and the alleged alterations made thereto by the Department
during the currency of the lease. They need not be repeated herein. However, the
applicant’s dissatisfaction with the manner in which the Department approached the
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circumstances surrounding the termi nation of the lease is reflec ted in the following
paragraphs.
“4. We repeat our previous submissions that we are extremely disappointed in the manner
how the Department has dealt with this building. We get the impression that the Department
has become accustomed to simply ignoring agreed upon contractual obligations, simply
because they are the Government. None of your replies, with respect, have any basis
whatsoever in law if one has regard to the contract which we have signed with the
Department.
5…
6. Our view remains as follows:
• you have not given us vacant occupation yet;
• Sassa (sic), as your subtenant, is still occupying the building consuming water
and electricity; during our visit on 5 May 2021, most of the lights and air conditioners
were switched on, even in the unoccupied sections. Therefore, the electricity account
is still accruing;
• you remain responsible for water and electricity and all other services until
vacant occupation is given to us.
7. We would like to emphasize again that you have not complied with our requests of 23 April
20214, not even with par (d) thereof. Should we not receive your urgent feedback, we will
have no other choice but to take legal advice, which will be a sad day having regard to our
years of very good relationships and all our endeavours to solve this issue amicable(sic). In
this regard we will be more than willing to meet the Department’s representatives and legal
department in George in order to discuss the current situation. The Department’s failure to
address these issues is causing us severe damages.”
19. On 18 May 2021, Mr. Brand replied to Mr. van Schalkwyk as follows –
4 This document was not placed before the Court in this application but it is annexed to the particulars
of claim as “POC2”, which were placed before the Court. The request in the said para (d) was for the
Department to urgently return the keys and access tags to the premises.
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“At our exit inspection meeting held with you at the subject premises on 26 February 2021,
you advised Edwellin and myself that you met with SASSA on Wednesday 26 February 2021.
SASSA indicated to you that they want to continue with thei r occupation within the premises
and is (sic) desirous to enter into a lease with you, but however they will have to get approval
to sign a new lease f or their occupation. You, as th e Landlord, however stated that since
SASSA is still in occupation of the premises, this Department still need (sic) to pay the full
rental, until you have signed a lease with SASSA, notwithstanding that the Western Cape
Government (WCG) have (sic) vacated the major part of the building. On 13 April 2021, this
office informed you via a letter that SASSA falls under the National Government and that this
Department cannot pay for their occupancy, as this will result in fruitless and wasteful
expenditure, in terms of the Public Finance Management Act, Act 1 of 1999 (PFMA).
Furthermore, you were also informed that SASSA, was informed during 2020, through various
correspondence, that the WCG will vacate the premises on 28 February 2021.
As it is not clear exactly what was discussed/agreed at your meeting held with SASSA,
numerous emails have been forwarded to SASSA (i.e. Ms. Ntsielo Sesiu) by this office to
confirm the agreement with you. To date no response have (sic) been received from Ms .
Sesiu.
The matter will now be referred to this Department’s Legal Advisory Services to legally attend
to this continued occupancy by SASSA, as well as your view to keep this Department liable
for rental and other costs regarding their continued occupancy. The legal costs for this matter
will either be for your account or SASSA, as SASSA is occupying the space with your
knowledge. I can confirm that the Service Level agreement (SLA) was signed by
representatives of SASSA and the Department of Social Development. This Department is
not a party to the SLA.
Insofar as paragraph 3 of your letter is concerned, this office will respond appropriately and
separately to you as soon as possible.”
20. Mr. Brand is described in the email as the “ Portfolio Officer ” in the
Department’s “Chief Directorate: Immovable Property”. His response in this email
appears to show a singular misunderstanding of the fact that there was no privity of
contract between the applicant and SASSA , of the Department’s contractual
obligations to the applicant under the lease and of its common law obligations both to
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SASSA and the applicant under the sub -lease. But that is, no doubt, what will sought
to be explored at the trial of this matter. For now, it suffices to say that the Department
had drawn the proverbial line in the sand and that the applicant was not likely to be
able to rely on the Department’s cooperation or goodwill going forward. Importantly,
the papers filed on behalf of the applicant herein demonstrate repeatedly that it did
not wish to have to resort to litigation with the Department. It made numerous
overtures over a protracted period of time in an endeavour to settle the matter
amicably but was rebuffed by the Department at every turn.
21. The applicant says that the Department only returned the keys to the
premises and the electronic access tags during July 20 21 and even then the keys
were in complete, thus limiting the applicant’s access to the building. The app licant
explains its predicament , which was not entirely of its own making, as follows in the
founding affidavit.
“[19] The Plaintiff was therefore left in the unenviable position that it had to first try and
establish what the position was pertaining to SASSA and then to try and make sense of the
extent of the repairs to the building. Although the Plaintiff had no agreement with SASSA, I
fully appreciated the important purpose of SASSA and it was therefore preferable not to take
legal action against SASSA but to rather try and establish the details of their occupation, such
as the anticipated time they would occupy the property and what infrastructure they will use. I
simply couldn’t out of the blue disconnect the electricity of the building to start maintenance
and repairs while SASSA would still occupy the property, therefore making it extremely
difficult to do planning for the Plaintiff.
20. It needs to be mentioned that the building is 4500 [ sq. m]. It is a 5 storey building in
George city centre. Various possibilities exist in renting such a building out. Depending on the
market, one can either rent out the entire building to a tenant (such as the Defendant), or
otherwise if one cannot find one tenant, the option arises that one needs to cater for many
occupants. The entire structure of the building then needs to be accordingly fixed in
accordance with what it is what one intends to do. Again, the fact that SASSA was occupying
the building without any specified details made it extremely difficult for me to first of all assess
the damage (and the claim against the Defendant), but secondly to quantify the damages.
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21. I instructed experts to assess the damage to the property after receiving the keys in July
2021. It was almost an impossible task at that stage as the Department refused to provide
any details of its so-called decanting process or money spent. I could only do proper planning
once I was certain that SASSA would remain in the building. I did not want to do all the
necessary repairs and quantifications only to find out that SASSA’s portion of the building will
also be vacant soon.”
22. In an attempt to address the practicalities of the situation, the applicant
then attempted to negotiate a lease with SASSA for that part of the premises it
occupied. But this could only be done once the lease was formally advertised through
a statutory tender process. The first tender for which the applicant tendered closed on
10 September 2021 but it was not awarded to the applicant and the tender thereafter
lapsed. A second tender closed on 28 February 2022 and the applicant filed a bid
accordingly. SASSA extended the validity period on 3 occasions – ultimately until 21
October 2022. This tender, too, was not awarded.
23. A third tender was issued by SASSA on 19 October 2022, with closing
date 9 November 2022. The applicant decided not to apply but bemoans the fact in
the founding affidavit (deposed to on 29 November 2023) that a year after the third
tender process was commenced, SASSA remained in occupation of the property.
24. The applicant consulted its attorneys during January and February 2022
and says it was advised not to “pull the trigger of litigation lightly” but rather to try and
resolve the dispute without reverting to litigation. On 9 March 2022 the applicant’s
attorney, Mr. van der Merwe, addressed a long letter to the Department, a letter which
could be construed as the applicant’s letter of demand. Once again I recite only the
material portions thereof.
“11. The purpose of this letter is not to provide the Department with a comprehensive and
detailed chronology of events and legal submissions but to rather attempt to resolve any
disputes amicably.
12. We fully appreciate that the persons to whom we address this letter in the Department,
might want to refer this letter to its legal department.
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13. We would like to invite, again, the Department and/or its legal representatives, to a further
meeting in a final attempt to settle any disputes between the parties. These disputes are:
13.1 The repairs that had to be conducted in order to bring the building into an
acceptable condition;
13.2 Damages suffered as a result of the fact that our client could not occupy the
property on 1 March 2021;
13.3 The issuing of the architect ’s certificates in terms of clauses 10.2 and 11.7 of the
lease agreement.
14. We will have to request you to provide us with a date, within the next 14 days. If we do not
receive a date, our client will assume that the Department does not want to participate in any
further meetings or communication in order to resolve disputes. Our instruction will then be to
merely proceed with the action against the Department.
15. We however trust that this will not be necessary and that we will hear from you.”
25. Mr. Brand acknowledged receipt of Mr. van der Merwe’s letter the same
day and on 17 March 2022 informed Mr. van der Merwe that the matter had been
forwarded to the Department’s “Legal Advisory Services” and that a response would
be forthcoming. On the same day Mr. Wayne Little, who is employed in the
Department of the Premier in the Western Cape Government, emailed Mr. van der
Merwe and infor med him that he would need an indulgence in order to take proper
instructions, promising a response by 11 April 2022 at the latest. Mr. van der Merwe
replied immediately that the dispute should be resolved constructively and through
negotiation.
26. When the 11 April 2022 deadline came and went, Mr. van der Mer we
sent yet another email to Mr. Little and asked for a reply within 7 days. This arrived on
21 April 2022 in the form of a brief and blunt den ial of liability with a reservation of the
Department’s rights. Mr. van der Merwe replied the following day noting that his letter
of 9 March 2022 did not seek an admission of liability from the Department but rather
a discussion on the issuing of the architect’s certificate. He expressed his dismay at
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the uncooperative and bullying attitude adopted by the Province and informed Mr.
Little that the applicant would proceed to enforce its contractual rights.
27. On 21 Febr uary 2023 the applicant issued the aforesaid notice under
s3(1) of the Act, to which there was no response from the Department and, as stated,
on 16 August 2023 summons was issued. It was only in early November 2023 with
the filing of the special plea, that the applicant knew that it was required to apply for
condonation in terms of s 3(4)(a) of the Act. It did so promptly thereafter : it lodged this
application on 30 November 2023.
GOOD CAUSE
28. In Rance the SCA noted that the point of departure in a matter such as
this is the interests of justice.
“[35] In general terms the interest s of justice play an important role in condonation
applications. 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.”
(Internal references omitted)
29. And in Van Wyk 5 the Constitutional Court offered this guidance as to
what may be considered with regard to the interests of justice.
“[20] This Court has held that the standard for considering an application for condonatio n is
the interests of justice. Whether it is in the interests of justice to grant condonation depends
on the facts and circumstances of each case. Factors that are relevant to this enquiry include
but are not limited to the nature of the relief sought, the extent and cause of the delay, the
effect of the delay on the administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance of the issue to be raised in the intended appeal
and the prospects of success.” (Internal references omitted)
5 Van Wyk v Unitas Hospital and another (Open Democratic Advice Centre as Amicus Curiae ) 2008 (2)
SA 472 (CC)
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30. Ms. Nyman was critical of the time taken by the applicant in advancing
its case and pointed to significant time gaps in the chronological development of the
saga. Mr. King on the other hand urged the Court to have regard to the manner in
which the case evolve d, pointing out that the determination of when the cause of
action arose was difficult to pinpoint for the reasons explained in the founding
affidavit, in particular, the difficulty in quantifying the applicant’s claim.
31. As I see it, t here are essentially two c omponents to the applicant’s
claim. Firstly, there is the Department’s holding over through the failure to give the
applicant vacant possession at the end of February 2021 and the concomitant failure
by the Department to deal with the problem it had created by granting SASSA a sub -
lease. Yes, there was an accommodation of SASSA by the applicant which took rental
payments from it in the interim but the ultimate responsibility for SASSA’s presence
on the premises seems to have lain with the Department. I say seems, because this is
ultimately an issue for determination by the trial court.
32. The second component to the claim is the cost of restoration of the
building to a condition which will enable the applicant to lease it out afresh, whether
with SASSA as a tenant or otherwise. At an early stage of negotiations (it would seem
around May/June 2021) the applicant was in possession of the architect’s certificate
which had quantified certain of the damages. It sought to discuss the extent thereof
with the Department as it believed had been agreed at the “walk through” inspection
on 26 February 2021. Yet when it raised this issue, the Department prevaricated and
appears to have reneged on the understanding which the applicant says the parties
had.
33. The applicant’s difficulties are described as follows in the founding
affidavit.
“[32] The difficulty the Plaintiff had was to determine the extent of any ‘improvements’ which
the Department might ha ve made, coupled with normal wear and tear taking into account the
damage to the property which the plaintiff may claim under the lease agreement. In a building
of 4500 [sq. m] it is not an overnight exercise. Subcontractors and the Plaintiff ’s maintenance
18
team took months to try to establish these facts and then to try and quantify same. The
absence of the information requested by the Plaintiff, i.e. the partitioning and electrical
articulation plan and COC certificates complicated and frustrated this process to a great
extent.”
34. With reference to Mr. van der Merwe’s letter of 9 March 2022 referenced
above, the applicant explained its difficulties as follows.
“[30] It needs to be borne in mind that Mr. van der Merwe requested the Defendant to enter
into bona fide, constructive discussions in order for dispute points to be minimized. The
reason for this was that it was extremely difficult for the Plaintiff to quantify damages first of all
where SASSA was still in the building and secondly where the Defendant failed to provide any
details pertaining to the alleged ‘improvements’. The reason was therefore not to already
claim money from the Department but to rather exchange information so that the dispute
points could be minimized to the extent possible. The Defendant’s reluctance to enter into
these discussions was therefore a great contributing factor to the uncertainty which the
Plaintiff found itself in.”
35. What one then sees when the matter is considered overall , is not a
prospective plaintiff standing by idly while the prescription -clock was ticking. Rather, it
was actively trying to resolve the conundrum by engaging with the Department before
being obliged to resort to litigation as the final step. And when it finally did so by giving
the s3 notice on 21 February 2023, the response of the Department was not to inform
the applicant that its notice was out of time, but rather to say that the notice had been
received, that the matter was under investigation and that the Department would
revert in due course. There is no indication that the Department did revert before
summons was issued.
36. Further, it is not every late s3 (1) notice that requires an application for
condonation under s3(4): the debtor may waive the necessity therefor under s3 (1)(b)
and the matter then proceeds as normal. Here, the non -compliance point was taken
for the first time in the special plea and that was ultimately when the applicant was
alerted to the necessity to apply for condonation.
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37. In considering whether the applicant has established good cause as the
Act requires, I am guided by the advice given by Innes CJ in Cohen Brothers6.
“In the nature of things it is hardly possible, and certainly undesirable, for the Court to attempt
to [define good cause]. No general rule which the wit of man could devise would be likely to
cover all the varying circumstances which may arise in applications of this nature. We can
only deal with each application on its merits, and decide in each case whether good cause
has been shown.”
38. In the result, and having regard to all of the circumstances of the matter,
I am satisfied that the applicant has shown good cause for its failure to deliver the
notice timeously.
ABSENCE OF PREJUDICE
39. In the founding affidavit the applicant makes the following allegations
regarding the absence of reasonable prejudice to the Department.
“[34] From the chronological order of events as explained above, I will humbly submit that the
Defendant suffered no prejudice by the delayed (formal service) of the Section 3 Notice. The
Department has been copied in the entire process, in an open and transparent manner, from
the day they vacated the premises. During this process the Department confirmed twice, even
before the Section 3 Notice was sent, that the matter would be referred to their Legal Advisory
Services. There could therefore have been no prejudice for the defendant. Legal argument
will be presented to the Honourable Court at the hearing of this matter.”
40. The answering affidavit was deposed to by Mr. Shane Duane Hindley,
the Department’s “Head of Component” in its “Chief Directorate: Immovable Asset
Management”. Mr. Hindley’s name does not f eature anywhere in the exchanges
between the pa rties which preceded the issue of summons and I agree with Mr.
King’s submission that it is difficult to believe his claim of personal knowledge of the
facts deposed to in the affidavit. Rather, h is affidavit is replete with bare and
6 Cohen Brothers v Samuels 1906 TS 221 at 224
20
unsubstantiated denials which suggest a rote , legalistic approach to the matter. One
example will suffice.
41. In para 43 of the answering affidavit (which is in reply to para 15 of the
founding affidavit) Mr. Hindley purports to deny the first three sentences of the said
para 15 , t he first two sentences whereof read “ On 18 M ay 2021 Mr. Kobus Brand
replied to Annexure ‘LJ3’. This email is attached (sic) Annexure ‘LJ4’.” Mr. Hindley
goes on to admit the fourth sentence of para 15. The deni al of emails attached t o the
founding affidavit is non sensical and, while one would have expected both sen tences
to have been admitted, they have not been.
42. Further, there is the customary attempt in the introduction to the
answering affidavit to attribute the deponent’s reference to matters not within his
personal knowledge to information conveyed to him. “ Where I rely on information
conveyed to me by others, I believe same to be true.” Yet, in the body of the affidavit
the deponent does not properly reference the identity of those who conveyed hearsay
evidence to him and, mos t importantly, he does not attach any confirmatory affidavits
by such persons to the answering papers.
43. This omission was seized upon in the replying affidavit deposed to on 13
February 2024. In an attempt to salvage the situation, the Department produc ed
confirmatory affidavits from Messer’s Arendse, Brand, and Hendriks deposed to 19
February 2024. These were never filed locally in the George Circuit Court but a filing
sheet dated 21 January 2924 bears the date stamp of the Registrar of the Western
Cape High Court, Cape Town. There is no affidavit explaining the delay nor asking for
the affidavits to be received into evidence. When the point was raised by Mr. King
during argument Ms. Nyman sought to hand the set of affidavits up from the Bar, once
again sans any explanatory affidavit. Mr. King understandably objected and the Court
declined to receive same as evidence.
44. Against that background, it is difficult to understand the bald allegation in
the introductory part of the answering affidavit regarding prejudice.
21
“29. Moreover, the Defendant was unreasonably prejudiced by the failure to comply with the
notice requirement.
30. Given the lengthy period of delay, it has been difficult to obtain copies of all the relevant
documents and communications. The witnesses’ memories have faded due to the excessive
period of delay.”
45. The Department does not identify which witnesses’ memories have
faded and, it might be mentioned, there is only a limited number of them who are
likely to be required to give evidence in the matter. Moreover, there is a well-
documented trail of correspondence which should be of use in refreshing any ailing
memories.
46. Further, there is Mr. Hindley’s reply, in para 57 of the answering
affidavit, to para 34 in the founding affidavit referred to above.
“I deny the contents of this paragraph and put the Plaintiff proof thereof. In amplification of this
denial, I state the P laintiff has neither been open or transparent. The Plaintiff has failed to
disclose the contents of its negotiations with SASSA, neither has it given the correct factual
situation. I stand by my contention that the Plaintiff has brought about improvements to the
building and that no repairs needed to be done. It cannot be placed in dispute that the
Defendant has spent a considerable amount of money bringing about improvements,
maintenance and repairs as shown in “PL 1” to “PL 12” of the Plea.”
It will be noted that the Department has not alleged that it will suffer any prejudice (let
alone unreasonable prejudice) if condonation is granted in this matter. Rather it has
chosen to address the merits of the claim, which will of course be tested if the matter
goes to trial.
47. In matters such as these, in the determination of unreasonable prejudice
(and I stress the word “unreasonable”) the enquiry shifts from the allegations which
can be made by an applicant on the facts within its knowledge, to consideration of the
22
allegations made by a respondent which will ultimately be far better placed to describe
its prejudice. In Madinda7 the SCA put it thus.
“[21] The third leg of s 3(4)(b) required the appellant to satisfy the court that the respondent
had not been unreasonably prejudiced by the failure to serve the notice timeously. 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, an
aspect which the judgment of the court a quo blurs) 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.”
48. When the matter is considered overall, I am unable to discern any
unreasonable prejudice which the Department will suffer if the matter goes to trial. In
fact, the allegations made in para 57 of Mr. Hindley’s affidavit suggest that the
Department is ready and able to challenge the allegations made in the particulars of
claim and that its witnesses are available to testify in that regard. I accordingly find
that the applicant has established the third criterion for consid eration in this
application.
CONCLUSION
49. At the end of the enquiry, the Court is required to consider all of the
evidential material before it and have regard to “ the overall impression…which brings
a fair mind to the facts set up by the parties.”8 In so doing a court must have regard to
a plaintiff’s fundamental right to have its claim decided fairly and in accordance with
the dictates of justice.9
7 Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA). See also Rance at [38] & [39]
8 Madinda at [13]
9 Malindi at [29]
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50. The applicant’s claim is substantial – just short of R7m – and it informed
the Department of its intention to hold it to the terms of the lease at an early stage
after the termination thereof. The main problem which then confronted the applicant
before it could properly calculate the extent of its claim – how to deal with SASSA’s
continued occupation of the premises – was largely not of its own making, given that
the Department had allowed SASSA to occupy part of the premises. In my considered
view, it would be unconscio nable in these circum stances to preclude the applicant
from advancing its claim further. As the Constitutional Court put it in Van Wyk, this
would not be in the interests of justice.
COSTS
53. Ordinarily, costs should follow the result but Ms Nyman contended that, since
the applicant was asking the Court for an indulgence, the Department should not have
to bear the applicant’s costs. While there is merit in that submission, I am guided in
this matter by the approach of the SCA in Lakay10.
“[25]…Ordinarily, in applications for condonation for non-observance of court procedure, a
litigant is obliged to seek the indulgence of the court whatever the attitude of the other side
and for that reason will have to pay the latter's costs if it does oppose, unless the opposition
was unreasonable. I doubt that this is the correct approach in matters such as the present, as
an application for condonation under the 2002 Act has nothing to do with non-observance of
court procedure, but is for permission to enforce a right, which permission may be granted
within prescribed statutory parameters; and such an application is (in terms of s 3(4)) only
necessary if the organ of state relies on a creditor's failure to serve a notice. In the
circumstances there is much to be said for the view that where an application for condonation
in a case such as the present is opposed, costs should follow the result…”
10 Premier, Western Cape v Lakay 2012 92) SA 1 (SCA) at [25]
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ORDER OF COURT
The following order is made:
A. The Applicant’s non -compliance with the six-month period
stipulated in section 3(2)(a) of the Institution of Legal Proceedings
Against Certain Organs of State Act, 40 of 2000 (the Act) and its
late compliance with the remainder of the provisions of section
3(2) of the Act, are condoned as provided for in section s 3(4)(a)
and (b) of the Act.
B. The applicant is granted leave to proceed with the action
instituted by it ag ainst the Respondent in this Court under the
above case number, as provided for in section 3(4)(c) of the Act.
C. The respondent is ordered to pa y the applicant’s costs of suit
herein.
__________________
GAMBLE, J
APPEARANCES
For the applicant:
Mr. W. King SC
Instructed by Van der Merwe & Van der Merwe Attorneys
George
For the respondent:
Ms. R. Nyman SC
Instructed by The State Attorney
Cape Town