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[2021] ZAGPPHC 34
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Joubert and Another v City of Tshwane, Metropolitan Municipality and Others (94370/16) [2021] ZAGPPHC 34 (14 January 2021)
IN THE REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 94370/16
REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED
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