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[2021] ZAGPPHC 3
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Joubert and Another v City of Tshwane, Metropolitan Municipality and Others (94370/16) [2021] ZAGPPHC 3 (14 January 2021)
IN THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 94370/16
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED.
YES
/NO
31
December 2020
In the matter between:
PIETER JOHANNES
JOUBERT
FIRST APPLICANT /
PLAINTIFF
CATHARINA ELIZABETH JEAN
SECOND APPLICANT / PLAINTIFF
and
THE CITY OF
TSHWANE,
METROPOLITAN
MUNICIPALITY
FIRST RESPONDENT / DEFENDANT
THE MUNICIPAL
COUNCIL,
CITY OF
TSHWANE
SECOND
RESPONDENT / DEFENDANT
THE MINISTER OF
SAFETY
AND
SECURITY
THIRD RESPONDENT / DEFENDANT
THE NATIONAL
COMMISSIONER
OF THE
SOUTH AFRICAN POLICE
SERVICE
FOURTH RESPONDENT / DEFENDANT
JUDGMENT
VAN
NIEUWENHUIZEN AJ
:
[1]
This is an application whereby the
Applicants seek condonation for their failure to comply with Section
3 of the Institution of
Legal Proceedings Against Certain Organs of
State Act 40 of 2002 (“the Act”). The necessity of
this application
arose due to the special plea of the First and
Second Respondents (“the Respondents”) to the effect that
the Plaintiffs
had instituted the main action to which this
application relates without complying with Sections 3(1), 3(2)(a) and
(b), and 4(1)
[the latter has no true bearing on the matter and I
thus do not deal with this section any further] of the Act.
[2]
The Applicants’ Particulars of Claim
raised four separate causes of action, albeit that the second to
fourth claims were all
interrelated to the extent that they arose
from the same alleged incident. The claims were respectively
categorised as “A”,
“B”, “C”, and
“D”. Claim A, which is further titled “
Intimidation
and Threat of Assault”
was
alleged to have arisen on or about 2 January 2015. Claims B to
D were alleged to have arisen on or about 20 April 2015.
Although the Respondents’ special plea was not limited to any
specific one or more of the claims contained in the Particulars
of
Claim, from the content of the answering affidavit, as well as in
argument before me, it was readily apparent that the special
plea was
truly aimed at Claim A. Indeed, on the facts before me,
the Applicants’ erstwhile attorneys of
record had duly delivered a written notice in compliance with the Act
on 29 July 2015
relating to the Applicants’ other claims (“the
initial notice”). The content thereof clearly was
sufficient
to have met the threshold as required in terms of Section
3(2)(b) of the Act which is evident from a simple reading thereof and
comparing same to the allegations contained in the Particulars of
Claim to which the Respondents were able to adequately plead.
Accordingly, what I am truly called upon to determine is whether or
not the Applicants’ failure to comply with Section 3
of the Act
in relation to Claim A should be condoned.
[3]
Section 3 of the Act provides 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) briefly set
out-
(i)
the facts giving rise to the debt; and
(ii) such
particulars of such debt as are within the knowledge of the creditor.
(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) If an application is granted in terms of
paragraph (b), the court may grant leave to institute the legal
proceedings in question,
on such conditions regarding notice to the
organ of state as the court may deem appropriate.”
[4]
From the provisions of Section 3(4) of the
Act, I am accordingly called upon to determine whether it would be in
the interests of
justice to grant condonation (
cf
Van Wyk v Unitas Hospital (Open
Democratic Advice Centre as
amicus
curiae
)
[2007] ZACC 24
;
2008
(2) SA 472
(CC) [20]) in the present application in relation to Claim
A if I am satisfied that:
(i)
the debt arising from Claim A had not been
extinguished by prescription;
(ii)
good cause exists for the failure by the
Applicants to have served a notice in terms of sub-section 2(a) [i.e.
within six months
from the date on which the debt became due, to wit
midnight 2 June 2015]; and
(iii)
the Respondents were not unreasonably
prejudiced by the said failure.
[5]
As I indicated in the preceding paragraph,
the general proposition as to whether or not condonation ought to be
granted depends
on whether or not it would be in the interests of
justice to do so. The classic example of where the law requires “
good
cause”
to be demonstrated by a
litigant is where condonation is sought for the late institution of
applications to rescind default judgments
(
Van
Wyk
op cit
).
This standard laid down by the Constitutional Court would similarly
still apply, in my view, in relation to the “post-notification”
[or “pre-condonation”] delay of delivery of the notice
required in terms of Section 3(1) of the Act. In other
words,
once a plaintiff is notified, through a special plea, that a State
organ has raised non-compliance with Section 3 of the
Act (and has
not consented in writing to the institution of legal proceedings
absent such a notice or upon receipt of a notice
which does not
comply with all the requirements set out in sub-section (2), as the
organ of State may do in accordance with Section
3(1)(b) of the Act)
then it is incumbent upon the plaintiff in such a situation to,
without delay, institute an application for
condonation.
[6]
As intimated in the preceding paragraph, it
follows that there are two possible periods of delay which may
require consideration
as to the granting of condonation, namely a
“pre-notification” delay, being the delay in excess of
the six month requirement
as set out in Section 3(2)(a) of the Act,
and a “post-notification” delay, being the delay in the
period between when
belated notice was given and the launching of an
application for condonation of its belatedness in terms of Section
3(4)(a) of
the Act. This was succinctly put as follows by the
Full Bench in
O C Potgieter v MEC for
Police, Roads and Transport
, an
unreported judgment of the Free State High Court, Case No. A131/2017,
delivered on 12 June 2018, at paragraphs 49 to 50, as
follows:
“
[49]
Mr Scheepers, in their heads of argument, submitted that the failure
to have timeously
launched the condonation application, did not
contribute to the prejudice claimed by the respondent. It was
furthermore submitted
that the court a quo erred in failing to
properly distinguish between the appellant’s failure to have
timeously served the
notice as opposed to the subsequent delay in the
bringing of the condonation application. In this regard, Mr Scheepers
relied on
the Madinda-judgment, supra.
[50] In the
said Madinda-judgment, at paras [14] and [20], the court indeed drew
a distinction
between the two respective periods of delay:
‘
[14]
One other factor in connection with 'good cause' in s 3(4)(b)(ii) is
this: it is linked to the failure to act timeously. Therefore
subsequent delay by the applicant, for example in bringing his
application
for condonation, will ordinarily not fall within its
terms. Whether a proper explanation is furnished for delays that did
not contribute
to the failure is part of the exercise of the
discretion to condone in terms of s 3(4), but it is not, in this
statutory context,
an element of 'good cause'. This is a distinction
which the learned judge did not draw or maintain and I think he was
wrong not
to do so.
[20]
It is also true that, although her attorney received the rejection
of
the notice in the middle of October 2005, the appellant did not
commence proceedings for condonation until July 2006. As I have
earlier pointed out, unexplained delay which relates to the period
after the notice was de facto given will ordinarily relate not
to the
establishment of good cause but to condonation. The learned judge
erred in his approach in this regard....”
[7]
Indeed, as was stated by Heher JA in
Madinda v Minister Of Safety and
Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at 318B
– D, the legislature curtailed the discretion of a court to the
extent that in deciding whether condonation
ought to be granted may
only arise once the three requisites in Section 3(4)(b) of the Act
had been met. Put differently,
if any of the three requisites
have not been met, as they are indeed conjunctive (see
Minister
of Agriculture and Land Affairs v C J Rance (Pty) Ltd
2010
(4) SA 109
(SCA) [11]), then the question of whether or not it would
be in the interests of justice to grant condonation does not even
arise.
(Compare
O C Potgieter
at
paras [51] to [53]).
[8]
Accordingly, it is necessary to set out the
applicable facts of the matter in relation to the Applicants’
Claim A. Claim A
is pleaded as follows:
“
10.1
On or about the 2
nd
of January 2015, at 993 Michael Brink Street, Villieria, the First
and Second Plaintiffs’ daughter, Catharina, and the Second
Plaintiff were approached by two un-identified coloured males at the
main gate of the premises, who arrived in a construction vehicle
with
registration number CZ71PW GP, who indicated that they are in the
employ of the First Defendant
;
[the First and Second Plaintiffs are
the Applicants in this matter and the First and Second Defendants,
the Respondents]
.
10.2
‘
Razor Roadside Assistance
and Panel Beating’ is the decal applied to the body of the
vehicle, creating the impression that
the drivers thereof were
vehicle specialists.
11.
The First and Second Plaintiffs’
daughter, Catharina, denied them access to the premises, believing
that the two men had a
mala fide motive, due to their failure to
introduce themselves as identification would be reasonably expected
by officers of the
First Defendant.
12.
12.1 Upon refusal
of access to the premises, the two officers proceeded to draw their
firearms
in an ill attempt to evoke authority, and fear and force any
resistance into submission, after which they boastfully announced
that they ‘will’ enter the premises;
12.2 The two
officers of the First Defendant furthermore demanded that all copper
on the premises
be handed over to them, failure of which would lead
to an undesirable arrest of the occupants to the premises.
12.3 At no point
in time did the officers of the First Defendant indicate a specific
load/batch
of copper which they were instructed to seize.
13.
The Plaintiff’s daughter,
Catharina, cautiously approached the officers of the First Defendant
and demanded that they put
away their weapons, which they blatantly
refused.
14.
As the encounter engulfed into a
heated conversation, the First Plaintiff appeared from the house due
to the commotion and noise,
only to be confronted by the aggressive
and provocative officers, who pointed their firearms at First
Plaintiff and his daughter,
Annemaria, respectively.
15.
The First Plaintiff and his
daughter, Annemaria, further requested the officers of the First
Defendant to remove themselves from
the premises, which they
subsequently ignored. Thereafter the Second Plaintiff and her
daughter, Catharina, after observing the
debacle, escorted the
officers of the First Defendant to their vehicle stationed outside of
the premises, where the Second Plaintiff
and her daughter, Catharina,
insisted that the local police station be contacted before any
further investigation would take place.
16.
Shortly after the Second Plaintiff
informed the officers of her incentive to contact the Villieria
Police Station once again, another
construction vehicle, with
registration number CZ71JR GP arrived on the scene. Two
unidentified adult males existed the vehicle
and introduced
themselves as undercover police officers who were instructed to
investigate the scene and seize any illegal copper.
17.
The Second Plaintiff phoned the
Villieria Police Station to speak to the officer in charge of all
second-hand goods offences and
requested him to find out who these
people were and what they wanted. Constable Mobec Mabelo then
requested to speak to one
of the officers and Second Plaintiff handed
her cellphone to one of the officers. After discussions, Mebelo
advised the First and
Second Plaintiffs to allow the officers to
inspect the premises. The Second Plaintiff and the officers then
proceeded onto the
premises where they inspected all goods of the
First and Second Plaintiffs as well as the First and Second
Plaintiffs’ register
in which all goods had been properly
recorded.
18.
18.1 After a
brief observation of the adjacent area, the officers identified a
bucket containing
approximately 25 kgs of copper cabling and demanded
that the Plaintiffs hand it over;
18.2 The Second
Plaintiff then informed the officers that she was in lawful
possession of the
copper in question and she had received it as a
gift from a certain Marius Becker during the course of their
business. Attached
hereto is a letter confirming the origin of
the copper marked
ANNEXURE “A”
;
18.3
Notwithstanding the above, the officers proceeded to load the said
copper into the construction
vehicle and subsequently left the
premises, without giving any receipt confiscated copper.
19.
19.1 As a direct
consequence of the intimidation of the Plaintiffs, they have suffered
damages
in the amount of R 100 000.
19.2
Notwithstanding demand, the First and Second Defendants have refused
to pay the amount
claimed or any portion thereof.
19.3 As a
consequence of the theft by the First and Second Defendants as
described above, the
Plaintiffs have suffered damages, being the
market value of the missing coper. The market value of the
stolen copper at the
relevant date was approximately R 75 per
kilogram. The Plaintiffs have accordingly suffered damages in
respect of the missing
copper in the amount of R 1 875,00.
19.4 In the
premises, the First and Second Defendants are jointly and severally
liable to the
First Plaintiff for the amount of R 200 000,00 in
respect of the intimidation and threat of assault and R 1 875,00
in
respect of the stolen copper.”
(
sic
)
.
[9]
As already alluded to above, on 29 July
2015, the Applicants’ erstwhile attorneys addressed the initial
notice as required
in terms of Section 3(1) of the Act to the
Respondents. The said demand was annexed as Annexure “PJJ2”
to the founding
affidavit in the application before me. I do
not propose to repeat its content herein but suffice it to state that
it in
no uncertain terms deals comprehensively, bút
exclusively, with the events of 20 April 2015 relating to the other
claims
of the Applicants. More about this later herein.
[10]
The summons commencing the action in the
present matter was served on the Respondents on 15 December 2016 and
the Respondents filed
their plea on 23 October 2019 after an
application for default judgment was served. Another written notice
purporting to comply
with Section 3(1) of the Act was served on the
offices of the Respondents on 5 March 2020 by the Applicants’
present attorneys
of record which then included the events of 2
January 2015 relating to Claim A.
[11]
The Respondents raised a further special
plea to the Applicants’ claim, namely that same had prescribed,
which prescription
point was pursued with in opposing the present
application. In their replying affidavit, the Applicants demonstrated
that the summons
had indeed been timeously served on 15 December 2016
which was also recorded in the joint practice note of the parties’
counsel
as a common cause fact. It was thus surprising that the
Respondents’ counsel was not provided with the necessary
instructions
that the Respondents would abandon any opposition
premised upon the assertion that the debt had been extinguished by
prescription
as envisaged in terms of Section 3(4)(b)(i) of the Act.
However, Mr du Preez, being the Respondents’ counsel, acted
quite appropriately in disclosing to me that he held no instructions
to abandon such a point, however, did not seek to waste this
court’s
time by pressing the matter any further. This point may readily
be put to bed as follows: not only had the
parties’ counsel
agreed as to the date when summons had been served on the Respondents
in their joint practice note, but
the Applicants had annexed the
returns of service in this regard to their replying affidavit when
there had clearly been a
bona fide
error in annexing the wrong returns of service to the founding
affidavit. The point raised in the Respondents’ heads of
argument that such returns of service being put forward only in reply
being impermissible was premised on the general proposition
that a
party may not raise new facts in reply. That general
proposition is subject to the power of a court to exercise its
discretion in special circumstances to allow such matter to stand.
[11.1]
In
Pat Hinde &
Sons Motors (Brakpan) (Pty) Ltd v Carrim and Others
1976 (4) SA 58
(T), Nestadt J held as follows at 63E – 64A :
“
I
find it unnecessary to decide whether the applicant's replying
affidavit sets out a new cause of action against the second and
third
respondents or merely raises new matter. In either event I have, I
consider, a discretion either to strike out what I would
call the new
matter (or direct that the applicant cannot rely upon it) or to
permit it to stand but give the respondents an opportunity
of filing
a second set of answering affidavits so as to deal with the new
matter. Both remedies stem from the general principle
of our law of
procedure that
'... an applicant should set
out in his petition or notice of motion and supporting affidavits a
cause of action and, since in application
proceedings the affidavits
constitute not only the pleadings but also the evidence, such facts
as would entitle him to the relief
sought'.
(Kleynhans v Van der Westhuizen, N.O.,
1970 (1) SA
565
(O)).
On p. 568 DE VILLIERS, J., goes on to state the
following:
'Normally the Court will not
allow an applicant to insert facts in a replying affidavit which
should have been in the petition or
notice of motion (cf. Mauerberger
v Mauerberger,
1948 (3) SA 731
(C); De Villiers v De Villiers,
1943
T.P.D. 60
; John Roderick's Motors Ltd. v Viljoen,
1958 (3) SA 575
(O); Berg v Gossyn (1),
1965 (3) SA 702
(O); Van Aswegen v Pienaar,
1967 (1) SA 571
(O)), but may do so in the exercise of its discretion
in special circumstances (cf. Bayat and Others v Hansa and Another,
1955
(3) SA 547 (N); Schreuder v Viljoen,
1965 (2) SA 88
(O)).
Once such a discretion has been exercised in favour of an applicant a
Court of appeal will only interfere if it comes to
the conclusion
that the Court a quo has not exercised its discretion judicially.,'
At p. 569 - the learned Judge stated:
'Respondent was prima facie
entitled to ask for the new matter to be struck out, because it was
only after such an application had
been formally made that applicant
filed an affidavit explaining fully why the new matter had not been
included in the initial application.
Even after the latter affidavit
had been filed respondent's opposition to applicant's request that
the Court in the exercise of
its discretion should allow the new
matter to remain in the replying affidavit, was not unreasonable.
Applicant was in effect asking
for an indulgence and at no stage
offered to pay respondent's wasted costs up to that stage.'
(See too Herbstein and Van Winsen, supra at p. 75,
from which it appears that the principle also applies to the making
out of a
new case in a replying affidavit).”
[11.2]
Similarly, in
Lagoon
Beach Hotel (Pty) Ltd v Lehane NO and Others
2016
(3) SA 143
(SCA) at paragraph 16 it was held as follows:
“
[16]
Then there is the fact that a voluminous replying affidavit
containing a great deal of evidential material
relevant to the issues
at hand had been filed. Relying upon authorities such a Sooliman, the
appellant argued that it was
'axiomatic . . . that a reply is
not a place to amplify the applicant's case' and that the new matter
had been impermissibly raised
by Lehane in reply, that it was
evidential material to which the appellant had not been able to
respond, and that it fell to be
ignored. However, again, practical
common sense must be used, and it is not without significance that
many of the hearsay allegations
complained of were admitted by the
appellant in its answering affidavit. …”
[Footnotes omitted.]
It has not
been sought that the allegations contained in the replying affidavit
and the annexures, to wit the returns of service,
be struck out, nor
has there been any suggestion of prejudice should such allegations
remain. Adopting a common sense approach,
it would be
unreasonable to turn a blind eye to the returns of service in this
regard. Accordingly, I am satisfied that the first
hurdle required by
Section 3(4)(b) of the Act has been met.
[12]
The next question is whether or not good
cause exists for the failure by the Applicants to have timeously
served the notice in terms
of sub-section (2)(a) of the Act. In this
context, “
good cause”
,
was discussed comprehensively by Heher JA in
Madinda
at paragraphs 10 to 15 as follows:
“
[10]
The second requirement is a variant of one well known in cases of
procedural non-compliance. See Torwood Properties (Pty) Ltd
v South
African Reserve Bank
1996 (1) SA 215
(W) at 227I - 228F and the cases
there cited. 'Good cause' looks at all those factors which bear on
the fairness of granting the
relief as between the parties and as
affecting the proper administration of justice. In any given factual
complex it may be that
only some of many such possible factors become
relevant. These 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.
[11] In Silber v Ozen Wholesalers (Pty) Ltd
1954 (2)
SA 345
(A) Schreiner JA said (at 352H - 353A):
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.
Although this passage relates to a different
legislative context (viz rule 46(5) of the magistrates' courts
rules), I am of the
view that it holds good for the interpretation of
s 3(4)(b)(ii).
[12] 'Good cause' usually comprehends the prospects
of success on the merits of a case, for obvious reasons: Chetty v Law
Society,
Transvaal
1985 (2) SA 756
(A) at 765D - E. But, as counsel
for the respondent stressed, whether that is the case must depend on
the terms of the statute
in which it is found. In s 3(4)(b)(ii),
there is a specific link created between the delay and the 'good
cause'. According to counsel's
submission, no matter how strong an
applicant's case on the merits that consideration cannot be causally
tied to the reasons for
the delay; the effect is that the merits can
be taken into account only if and when the court has been satisfied
and comes to exercising
the discretion to condone. I do not agree.
'Good cause for the delay' is not simply a mechanical matter of cause
and effect. 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. Strong merits may mitigate
fault; no
merits may render mitigation pointless. There are two main
elements at play in s 4(b), viz the subject's right to have the
merits
of his case tried by a court of law and the right of an organ
of state not to be unduly prejudiced by delay beyond the statutorily
prescribed limit for the giving of notice. Subparagraph (iii) calls
for the court to be satisfied as to the latter. Logically,
subparagraph (ii) is directed, at least in part, to whether the
subject should be denied a trial on the merits. If it were not
so,
consideration of prospects of success could be entirely excluded from
the equation on the ground that failure to satisfy the
court of the
existence of good cause precluded the court from exercising its
discretion to condone. That would require an unbalanced
approach to
the two elements and could hardly favour the interests of justice.
Moreover, what can be achieved by putting the court
to the task of
exercising a discretion to condone if there is no prospect of
success? In addition, 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. As I
interpret the requirement of good cause for the delay, the prospects
of success are a relevant consideration.
The learned judge a quo
misdirected himself in ignoring them.
[13] The relevant circumstances must be assessed in a
balanced fashion. The fact that the applicant is strong in certain
respects
and weak in others will be borne in mind in the evaluation
of whether the standard of good cause has been achieved.
[14] One other factor in connection with 'good cause'
in s 3(4)(b)(ii) is this: it is linked to the failure to act
timeously. Therefore
subsequent delay by the applicant, for example
in bringing his application for condonation, will ordinarily not fall
within its
terms. Whether a proper explanation is furnished for
delays that did not contribute to the failure is part of the exercise
of the discretion to condone in terms of s 3(4), but it is not, in
this statutory context, an element of 'good cause'. This is
a
distinction which the learned judge did not draw or maintain and I
think he was wrong not to do so.
[15] Absence of prejudice has often been regarded as
an element of good cause in the context of earlier legislation. It
was, no
doubt, also an element in determining where the interests of
justice lay in the terms of s 57 of Act 68 of 1995. But in this Act
the legislature has deemed it appropriate to treat absence of
unreasonable prejudice as a specific factor of which an applicant
must satisfy the court. The identification of separate requirements
of good cause and absence of unreasonable prejudice may be
intended
to emphasise the need to give due weight to both the individual's
right of access to justice and the protection of state
interest in
receiving timeous and adequate notice.”
[13]
It is trite that whether or not “
good
cause”
has been established
depends on a number of factors which will differ from case to case,
depending on the differing facts, and
there is no exhaustive list
(see
inter alia
C
J Rance
at paragraph 36 and
Madinda
at paragraph 10). Factors such as the prospects of success, the
length of the delay and the reasonableness of the explanation
therefor, as well as the bona fides with which the application is
brought are, in my view, dispositive of this leg of the inquiry
in
the present matter (as it may be in general). Whilst it is so that
the allegations of intimidation, through the pointing of
firearms,
and apparent theft of copper cable are met by a bald denial in the
Respondents’ plea, and that such conduct, of
itself, would
prima facie
be unlawful, in light of what follows, this factor plays a lesser
role in my adjudication of the matter.
[14]
I am perturbed by the Applicants’
bona fides
with
which they seek to present not only Claim A, but this present
application in that context. Commencing with the
bona
fides
with which Claim A has been put
forward: by virtue of the very fact that the Applicants’
daughters, were equally purported
victims of the allege intimidation
that is averred to have occurred on 2 January 2015, the fact that
both daughters have not presented
confirmatory affidavits to the
present application, nor has it been suggested that they too have
sought to institute claims against
the Respondents, renders the
veracity of Claim A highly doubtful. This is further amplified by the
fact that if there had been
any theft of copper, albeit in an small
amount, in the context where such a theft was conducted by Metro
police officers who in
fact ought to protect the public, one would
have expected the Applicants to have lodged a complaint of theft or
to have raised
a complaint with the Independent Police Investigative
Directorate or with the City of Tshwane Metropolitan Municipality
itself.
But there is not an iota of any such evidence one would have
expected from a litigant who seriously had any intent on prosecuting
his or her claim.
[15]
Touching on the aforegoing, it brings me to
the second component that relates to the explanation for the delay:
[15.1]
The Applicants in effect, place all the
blame on their erstwhile attorneys. They go so far as to expressly
accuse their erstwhile
attorneys of having acted negligently in
failing, despite being armed with full instructions as to the events
of 2 January 2015,
to have raised such facts in the initial notice.
On several occasions, both in the founding affidavit and in the
replying affidavit,
the erstwhile attorneys are thrown under the bus.
[15.2]
However, the Applicants, in attempting to
absolve themselves from any blame, ironically contradicted themselves
under oath because,
in contrast to the purported negligence of their
erstwhile attorneys, they on multiple occasions, in both the founding
and replying
affidavit, expressly suggest that the initial notice
indeed did refer to the events of 2 January 2015 albeit not in the
clearest
of terms. This repetitive stoic stance of the
Applicants is so glaringly untenable when that demand is perused that
the inescapable
inference is that the Applicants are not
bona
fide
in their approach to this court.
[15.3]
But the Applicants’ difficulties do
not end there. If their erstwhile attorneys were indeed
negligent as suggested,
one would have expected a complaint to have
been lodged with the Legal Practice Council. There is no suggestion
to that effect
whatsoever.
[15.4]
I am also dissuaded of any
bona
fides
from the Applicants in light of
their resort to being ignorant of the requirements of the Act. Whilst
they may be lay persons insofar
as the law is concerned, attorneys do
not act without instructions from their clients. It is
untenable that the initial demand
had been authored and served on the
Respondents without the Applicants’ instructions and therefore
that they would have been
provided therewith or at least the contents
thereof prior to instructing their erstwhile attorneys to so serve
it. The Applicants
need not have had any knowledge of the provisions
of the Act to have corrected the erstwhile attorneys as to the
absence of pertinent
facts in the notice. Too often litigants simply
cast blame towards their (often by then erstwhile attorneys) in
seeking to avoid
responsibility for their own (in)actions. Courts
should be studious not to allow its officers to become readily
scapegoats.
[16]
The importance of the requirement of
bona
fides
has been stressed in different
contexts by our courts:
[16.1]
More than a century ago, Solomon J (as he
then was) in
Silverthorne v Simon
1907
TS 123
at pages 124 to 125 said the following:
“
Whenever,
therefore, there is any really satisfactory explanation of a delay on
the part of the defendant, if the Court comes to
the conclusion that
his application is bona fide, that he is really anxious to contest
the case, and believes that he has a good
defence to the action, and
if, in those circumstances, the order can be made without any damage
or injury to the plaintiff other
than can be remedied by an order as
to payment of costs, I think when those conditions are present in any
application the Court
should as far as possible assist the defendant
and allow him to file a plea in the action. On the other hand, of
course, if the
Court comes to the conclusion that the application is
a mala fide one, that the defendant really has no belief in the
justice of
his cause, and has no desire to have the case decided on
the merits, but that his only object in making the application is to
delay
the plaintiff in obtaining his just claim, then the Court
clearly should not hesitate to refuse to make any order
.”
[16.2]
Silverthorne
dealt
with a removal of bar. The same requirement has been laid down in the
context of resisting an application for summary judgment,
the
rescission of a default judgment, as well as raising a dispute in
liquidation proceedings. It is a separate requirement (see
also
Dalhouzie v Bruwer
1970
(4) SA 566
(C) 572C – E). In
Standard
Bank of SA Limited v El-Naddaf and Another
1999 (4) SA 779
(W) at 784C – 786B Marais J stated the
following:
“
I
wish to add something in regard to the sketchiness of the second
defendant's affidavit. It is true that in Grant v Plumbers (Pty)
Ltd
1949 (2) SA 470
(O) Brink J at 476-7 said that:
'He must show that he has a
bona fide defence to the plaintiff's claim. It is sufficient if he
makes out a prima facie defence in
the sense of setting out averments
which, if established at the trial, would entitle him to the relief
asked for. He need not deal
fully with the merits of the case and
produce evidence that the probabilities are actually in his favour.'
I am aware that this was approved by Zulman AJ (as he
then was) in Federated Timbers Ltd v Bosman NO and Others
1990
(3) SA 149
(W) at 155 et seq. I also accept the statement by Zulman
AJ that it is not necessary for the defendant to actually prove his
case.
Clearly not.
But I find a degree of contradiction in the statement
by Brink J that on the one hand the applicant must show that he has a
bona
fide defence and his statement that it is sufficient if
the applicant sets out 'averments which, if established at the trial,
would
entitle him to the relief asked for'. It seems to me that the
question of whether the applicant has shown that he has a bona fide
defence must be decided against the background of the full context of
the case. In a case such as this, where the applicant for
rescission
admits having signed a clear suretyship, I feel that it cannot be
sufficient to establish bona fides if she baldly states
'the
plaintiff misled me as to the contents of the document I was signing'
without saying how the plaintiff misled her. I am at
a loss to
understand how, if so bald and sketchy an averment is made, a court
can be satisfied as to the bona fides of an applicant
who is in a
position to set out much more clearly (without requiring massive
detail) how she was misled and by whom on behalf of
the plaintiff.
It seems to me that the situation is analogous to
that under Rule 32(3)(b) of the Uniform Rules of Court, which
requires that the
Court must be satisfied that the defendant has a
bona fide defence. This subrule was considered in Breitenbach v Fiat
SA (Edms)
Bpk
1976 (2) SA 226
(T). The relevant portion of the
subrule requires the defendant to 'satisfy the Court by affidavit . .
. that he has a bona fide
defence to the action; such affidavit . . .
shall disclose fully the nature and ground of the defence and the
material facts relied
upon therefor'. It will immediately be seen
that the second portion of the sentence contains requirements
different to those specifically
required in an application for
rescission. However, Colman J deals with the requirement that the
defendant must satisfy that his
defence is bona fide as
(a) separate from
the requirement that he must satisfy the Court that he has a defence
and
(b) separate from
the requirement that he ‘shall disclose fully the nature and
grounds
of the defence and the material facts relied upon therefor.
At 227 in fine - 228A Colman J says:
'If, therefore, the averments
in a defendant's affidavit disclose a defence, the question whether
the defence is bona fide or not,
in the ordinary sense of that
expression, will depend upon his belief as the truth or falsity of
his factual statements. . . .'
That paragraph is preceded at 227G-H by the statement
that the rule requires that the defendant
'set out in his affidavit
facts which, if proved at the trial, will constitute an answer to the
plaintiff's claim. If he does not
do that, he can hardly satisfy the
Court that he has a defence. . . . On the face of it, bona fides is a
separate element relating
to the state of defendant's mind.'
This makes it quite clear that Colman J regarded the
requirement that bona fides be demonstrated as separate and distinct
from the
requirement that the affidavit 'shall disclose fully the
nature and grounds of the defence' etc, even though there would
appear
to be some inevitable overlapping between the two
requirements. That Colman J regarded bona fides as a separate
requirement, and
was dealing with that only in the last sentence of
the following passage, appears from the full passage itself. At
228B-E the relevant
passage occurs and it reads:
'Another provision of the
subrule which causes difficulty, is the requirement that in the
defendant's affidavit the nature and the
grounds of his defence, and
the material facts relied upon therefor, are to be disclosed
''fully''. A literal reading of that requirement
would impose upon a
defendant the duty of setting out in his affidavit the full details
of all the evidence which he proposes to
rely upon in resisting the
plaintiff's claim at the trial. It is inconceivable, however, that
the draftsman of the Rule intended
to place that burden upon a
defendant. I respectfully agree, subject to one addition, with the
suggestion by Miller J in Shepstone
v Shepstone
1974 (2) SA 462
(N) at 366-467, that the word ''fully'' should not be given its
literal meaning in Rule 32(3), and that no more is called for than
this: that the statement of material facts be sufficiently full to
persuade the Court that what the defendant has alleged, if it
is
proved at the trial, will constitute a defence to the plaintiff's
claim. What I should add, however, is that if the defence
is averred
in a manner which appears in all the circumstances to be needlessly
bald, vague or sketchy, that will constitute material
for the Court
to consider in relation to the requirement of bona fides.'
The last two sentences make it clear that Colman J
separates the requirement to show bona fides and the requirement to
'disclose
fully the nature and grounds of the defence and the
material facts relied upon therefor'.
I stress the distinction drawn by Colman J because,
since he does not rely upon the other arguments of the Rule when he
lays down
what is required to demonstrate bona fides, I am satisfied
that his remarks regarding what is required to demonstrate that a
defence
is bona fide are of equal application to applications for
rescission where the applicant is also required to demonstrate that
he
has a defence which is bona fide.
In my view the concluding sentence in the passage
that I have quoted is of full application to applications for
rescission. In my
view, where it is required that bona fides be
demonstrated, this cannot be done by making a bald averment lacking
in any detail.
Insofar as Grant's case may suggest that a mere bald
averment 'which appears in all the circumstances to be needlessly
bald, vague
or sketchy' is sufficient to demonstrate bona fides, I am
of the view that it is clearly wrong and I decline to follow it.
The authority of the judgment of Colman J (and common
sense) indicate that bona fides cannot be demonstrated by merely
making a
bald averment lacking in any detail. To hold that such bald
averment is sufficient to demonstrate bona fides is a classic
oxymoron.
It effectively negates the requirement that the Court be
satisfied that the applicant has a bona fide defence. It could with
equal
validity be held that a mere statement by an applicant that his
defence is bona fide would be sufficient, which is manifestly
absurd.”
[16.3]
The aforesaid
dicta
of Marais J has been followed in this division in
Loretto
CC & Another v Distillers Corporation Limited
[Case
No.: A1090/07 (GNP)] at paragraph 14 and in
M[....]
v D[....] and Another
84951/2019 [2020]
ZAGPPHC 677 (25 November 2020) at paragraphs 13 to 14 and approved in
Gap Merchant Recycling CC v Goal Reach
Trading CC
2016 (1) SA 261
(WCC) by
Rogers J at paragraphs 23 to 26, as follows:
“
[23]
Mr Randall reminded me that in the present case the applicant did not
accept the bona fides of the respondent in raising its
defence. Both
bona fides and reasonableness were in issue. With regard to the
requirement of bona fides, Mr Randall
referred me to the judgment of
Marais J in Standard Bank of SA Ltd v El-Naddaf and Another
1999 (4) SA 779
(W). That case concerned an application for
rescission. One of the requirements for successful rescission was
that the defendant
had to demonstrate the existence of a bona fide
defence. Marais J referred to the well-known judgment of Colman J in
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) concerning
summary judgment. He pointed out that in Breitenbach
Colman J held that the requirement of bona fides
was separate from
the requirement that the defendant satisfy the court that he has a
defence, and separate from the requirement
that the defendant
'disclose fully the nature and grounds of the defence and the
material facts relied upon therefor'. Bona fides
have to do with the
belief on the part of the litigant as to the truth or falsity of his
factual statements; it is a separate element
relating to the state of
the defendant's mind (El-Naddaf at 784G – 785B, quoting from
Breitenbach).
[24] Marais J then quoted (at 785D – F) the
passage in Breitenbach appearing at 228B – E. In that passage
Colman J said,
with reference to rule 32(3), that the duty 'fully' to
disclose the nature and grounds of the defence was not to be taken
literally
and that the statement of material facts should simply be
sufficiently full to persuade the court that what the defendant has
alleged,
if it is proved at the trial, will constitute a defence to
the plaintiff's claim. Importantly, Colman J added the following (and
it was this passage in particular which Marais J in El-Naddaf
highlighted):
'What I should add, however,
is that if the defence is averred in a manner which appears in all
the circumstances to be needlessly
bald, vague or sketchy, that will
constitute material for the Court to consider in relation to the
requirement of bona fides.'
[25] Marais J said that this explanation regarding
the requirement of bona fides applied with equal force to
the requirement
in rescission proceedings that the defendant
demonstrate a bona fide defence, emphasising in particular that bona
fides cannot
be demonstrated by making bald averments lacking in any
detail (at 785H – I).
[26] I see no reason for adopting a different
approach when considering, in liquidation proceedings, whether the
applicant's claim
is bona fide disputed on reasonable grounds. Bona
fides relates to the respondent's subjective state of mind, while
reasonableness
has to do with whether, objectively speaking, the
facts alleged by the respondent constitute in law a defence. The two
elements
are nevertheless interrelated because inadequacies in the
statement of the facts underlying the alleged defence may indicate
that
the respondent is not bona fide in asserting those facts. As
Hülse-Reutter makes clear, the objective requirement of
reasonable
grounds for a defence is not met by bald allegations
lacking in particularity; and, as appears from Breitenbach and
El-Naddaf,
bald allegations lacking in particularity are unlikely to
be sufficient to persuade a court that the respondent is bona fide.”
[17]
The present facts differ from the facts in
Madinda
.
In the present matter, one can hardly think of a more traumatic event
of intimidation than being threatened with a firearm. Over
and above
such a threat and the obvious affront to one’s dignity and
sense of safety and security, especially by persons
identifying
themselves as Metro police officers, a further insult was then
purportedly committed through the theft of property.
These alleged
infringements of constitutional rights are patent and objectively
serious. If the matter was at all important to
the Applicants, not
only would the criticisms that I have demonstrated earlier in this
judgment not have arisen, but they would
also have approached
attorneys prior to the events alleged to have occurred on 20 April
2015. I am therefore not satisfied that
the second requirement under
Section 3(4)(b) of the Act has been met. Good cause does not exist
for the Applicants’ failure
with due regard of the overall
impression of the facts before me.
[18]
In addition to the lack of good cause, upon
reflection, I am also not persuaded that the Respondents were not
unreasonably prejudiced
by the said failure. The initial notice was
comprehensive and clearly provided sufficient information for the
Respondents to investigate
the facts averred therein. This is
fortified by the comprehensive plea of the Respondents to the other
claims of the Applicants
which arose from the events of 20 April
2015. The Respondents have set out why they were unduly prejudiced
due to the failure by
the Applicants to have provided timeous notice
of the alleged events that occurred on 2 January 2015 in the
answering affidavit.
These were
inter
alia
the absence of the number of
employees, or their ranks, of the First Respondent that approached
the Applicants, whether or not
a warrant had been issued to allow the
premises of the Applicants to be entered by the unknown employees,
the detail of the lawfulness
of the possession of the copper and
solar batteries purported to have been stolen (in respect of the
latter this appears from the
belated notice in writing in relation to
the alleged events of 2 January 2015). The absence of such
facts, the Respondents
say, severely prejudices them as they are
unable, years later after the alleged event, to verify any of the
details or investigate
the matters and indeed locate witnesses.
In this respect, it is apropos to refer to what was said by the
Supreme Court of
Appeal in
C J Rance
at
paragraphs 13-14:
“
[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'. 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
are not in issue.
[14] In Mohlomi the following is stated:
'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.'
”
[Footnotes
omitted.]
[19]
The Applicants’ answer to the
Respondents’ complaints suggest simply, again, that the initial
notice was merely vague
insofar as the alleged incident of 2 January
2015 was concerned, which was patently not the case as it was clearly
not referred
to whatsoever. The Applicants continue to seemingly
suggest that all the relevant facts were contained in the Particulars
of Claim
which have been served on 15 December 2016 and that all
necessary information could have been gleaned therefrom and from the
docket
referred to in the initial written notice of 29 July 2015.
Belatedly, the Applicants then also in their replying affidavit
state
that the employees of the Second Respondent who had committed the
alleged unlawful acts in respect of the alleged events
of 20 April
2015, were the same employees referred to in the Particulars of Claim
under Claim A. These allegations of the
Applicants are no
answer to the prejudice asserted by the Respondents:
[19.1]
Firstly, as already pointed out, the
initial notice only dealt with the events of 20 April 2015, not with
the alleged events of
2 January 2015.
[19.2]
Secondly, the docket number referred to in
the replying affidavit, being the one recorded in the initial notice,
deals only with
the events of 20 April 2015 and would not have
assisted the Respondents as suggested by the Applicants.
[19.3]
Thirdly, the Applicants’ attempt to
rely on the facts as contained in their Particulars of Claim also
does not assist them.
The legislature has created a legislative
mechanism whereby organs of State are to be notified of such intended
claims. The
Applicants’ procrastination in prosecuting
the action has not been explained and the fact that the Respondents
have seemingly
only been compelled to plead to the Particulars of
Claim nearly 3 years after the action had been instituted supports
the Respondents’
contention of unreasonable prejudice that they
had suffered and certainly cannot negate the requirements of the Act.
[20]
Thus, I am not satisfied that the final
hurdle of Section 3(4)(b) of the Act has been crossed.
[21]
Accordingly, the application cannot
succeed. Even if I was wrong in my conclusion in either of the
requirements pertaining to “
good
cause”
or “
unreasonable
prejudice”
, as stated by Heher JA
in
Madinda
at paragraph 16:
“
The
structure of s 3(4) is now such that the court must be satisfied that
all three requirements have been met. Once it is so satisfied
the
discretion to condone operates according to the established
principles in such matters, as to which see eg United Plant Hire
(Pty) Ltd v Hills and Others
1976 (1) SA 717
(A) at 720E - G.”
and
accordingly if my discretion to condone could be called upon to be
exercised based upon the established principles in such matters,
I
would have declined to do so.
In casu
, the special plea
was raised on 23 October 2019. The notice of motion and
founding affidavit were dated (and deposed to)
on 28 April 2020. The
application itself was only served on the Respondents on 30 June
2020. The only explanations pertaining to
the periods in between the
aforesaid dates were:
[21.1]
the purported vagueness in relation to the
initial notice was only brought to the Applicants’ attention
when the Applicants’
current attorneys of record obtained an
opinion from counsel in February 2020 (
sic
);
[21.2]
according to the Applicants, advice was
rendered that after the opinion of counsel was obtained, that it was
evident that counsel
was not provided with all the documents with
regards to the matter;
[21.3]
after all the documents were supplied to
(presumably the same) counsel, on 2 March 2020 a new notice in terms
of Section 3(1) of
the Act was settled by counsel and served on the
Respondents;
[21.4]
according to the Applicants, the
Respondents had 30 days from the new notice in terms of Section 3(1)
to consent to condonation
for the late notice and after no such
consent was received, on 13 April 2020, counsel was given
instructions to settle the application
for condonation;
[21.5]
the Applicants’ attorneys of record
received the complete application from counsel on 17 April 2020;
[21.6]
however, due to the Covid-19 epidemic
(
sic
), the
application could not be issued and served.
[22]
It is apparent from the aforegoing that no
explanation was proffered by the Applicants for the period of 24
October 2019 to February
2020. In fact, in respect of the
latter period, no precise date is even provided (see
M[....]
v D[....] and Another
84951/2019 [2020]
ZAGPPHC 677 (25 November 2020) at paragraph 5).
[23]
The explanation for the delay for that
period is accordingly not only deficient, but it follows, cannot be
reasonable. In
the replying affidavit, the Applicants, again
patently in a contradictory fashion, state that the previous
attorneys of record
informed them that no condonation was needed due
to the Particulars of Claim automatically remedying the purported
vagueness in
the initial notice in terms of Section 3(1) of the Act
of 29 July 2015. This is nonsensical as there was no
suggestion, until
23 October 2019, of any supposed vagueness of the
said initial notice. Whilst it is not stated when the
Applicants’
present attorneys of record came on record, the
Respondents’ plea was served on them on 23 October 2019.
It follows
that this is an additional basis demonstrative of the lack
of
bona fides
in the application for condonation.
[24]
Thus, with due regard to the distinction of
the difference in assessing the facts for purposes of
pre-notification condonation (or
rather “good cause”) as
required in terms of Section 3(4)(b)(ii) of the Act and condonation
for the pre-condonation
period or post-notification period as
illuminated in
Madinda
,
the facts that rendered the separate requirement of
bona
fides
for “good cause” is
of equal application insofar as condonation would have been required
in any event as amplified
by what is set out in paragraphs 21 to 23
above.
[25]
In addition to the aforegoing, by virtue of
the fact that the explanation in the delay is not satisfactory or
reasonable, condonation
could similarly not be granted as it would
not be in the interests of justice under such circumstances.
[26]
In conclusion, lest there be any confusion,
this judgment extends only insofar as the Applicants’ Claim A
is concerned.
In my view, [and that of counsel who appeared
before me] that is the sole issue that I was called upon to determine
and it could
not have been otherwise as there was clearly due
compliance with Section 3(1) of the Act insofar as the Applicants’
Claims
B to D are concerned.
[27]
Accordingly, the application is dismissed
with costs.
H P VAN NIEUWENHUIZEN
Acting Judge of the High Court
Gauteng Division of the High Court, Pretoria
Electronically submitted, therefore unsigned
Delivered: This judgment was
prepared and authored by the Judge whose name is reflected on
31
December 2020 and is handed down electronically by circulation to the
parties/their legal representatives by e mail and
by uploading
it to the electronic file of this matter on CaseLines. The date
for hand-down is deemed to be 31 December 2020.
Date
of hearing: 9 November 2020
Date
of judgment: 14 January 2021
Appearances:
Taute,
Bouwer & Cilliers Inc.
Attorneys
for the Applicants
Counsel
for the Applicant:
M Bouwer
Gildenhuys
Malatji Inc
Attorneys
for the Respondents
Counsel
for the Respondents:
W R du Preez