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[2021] ZANCHC 47
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Solomon v Sol Plaatje Municipality (244/2021) [2021] ZANCHC 47 (3 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 244/2021
Heard:
27/08/2021
Delivered:
03/09/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
DON
DANIEL
SOLOMON
Applicant
and
SOL
PLAATJE
MUNICIPALITY
Respondent
JUDGMENT
Moses
AJ
INTRODUCTION
1.
This is an application for condonation in terms of section 3(4)
of
the Institution of Legal Proceedings Against Certain of State, Act 40
of 2002 ("Act 40 of 2002").
2.
The salient facts and background of this application can be
summarised as set out herein below.
3.
An accident happened on or about 27 August 2019, in which the
Applicant sustained serious injuries. His medical doctor then advised
him about the possibility of a claim for such injuries. He
then
decided to get legal advice.
4.
The
Applicant consulted with his attorney on 01 June 2020
[1]
.
5.
The
Applicant's attorney of record thereafter sent a letter, the Required
Statutory Notice in terms of Section 3 of ILPACOSA 40
of 2002, dated
18 June
2020, to
the Municipality on 24 June 2020 per registered post
[2]
.
6.
The Municipality's Insurer, Guardrisk, then responded to this
Statutory Notice, on behalf of the Municipality, by way of two
letters, both dated 27 August 2020:
6.1
in
their first letter
[3]
,
they
repudiated the claim on the basis that
"your
claim
is not recoverable under our insured's policy and we are unable to
accept liability in this matter'.
That
was their initial, and first ground for repudiating the claim.
6.2
in
their second letter, the insurance company then added a second ground
for repudiating the said claim, namely, the Applicant's
noncompliance with section 3(2) of Act 40 of 2002, in that the
required Statutory Notice was NOT given (to the Municipality)
within
six (6) months after the accident had happened - i.e. when the debt
became due
[4]
.
7.
The
Applicant then requested the Insurance Company via a letter dated 7
September 2020
[5]
, in which the
Municipality was copied, for condonation i.e. their written consent
to institute the proceedings despite the said
Notice having
been given
out of time, later than 6 months after the accident. This is
permissible in terms of Section 3(1)(b) of Act 40 of 2002.
8.
No such written consent was forthcoming from either the Municipality
and/or the insurance company, Guardrisk, to date hereof, despite the
said letter of request by, and on behalf of the Applicant.
9.
In the circumstances, the Applicant was left with no other
alternative than to apply to this Court for condonation in terms of
section 3(4)(a) of Act 40 of 2002, which he was and is entitled
to
do.
The
Legal Requirements and Finding
10.
The Court seized with such an application then has the discretionary
power to
grant such condonation application, provided that the Court
is satisfied that:
a)
the debt has not been extinguished by prescription. It has
not, since the accident happened, as alleged, on or about 27 August
2019,
less than three years ago;
b)
good cause exists for the failure by the creditor. The
Applicant received advice from his medical practitioner about the
possibility
of a claim in such circumstances. He then sought legal
advice, on 1 June 2020, and pursuant thereto, on
24 June 2020,
the required statutory Notice was sent to the Municipality. This is,
in any event within six (6) months of the Applicant being
made aware,
through legal advice, that he has a claim which he could pursue
against the Municipality;
AND
c)
the Organ of State was not unreasonably prejudiced by the
failure.
11.
No unreasonable prejudice has been shown or demonstrated that the
Municipality,
might suffer because of this late, out of time,
Statutory Notice. The Applicant has also furnished the
Municipality/Respondent
with a comprehensive explanation of the
circumstances surrounding the incident, and hence the claim,
including clear colour pictures
together with coordinates of the
scene of the accident. In fact, on the Respondent's papers, it is not
clear whether or not they
indeed object to condonation being granted
and/or what their basis is for not having given their written consent
in terms of section
3(1)(b) of Act 40 of 2002.
12.
The Respondent's case seems to be that the Applicant must first issue
and serve
Summons, and only then, or thereafter, can the issue of
compliance with section 3(1)(a) of the Act and condonation then be
considered
and dealt with. This is clearly wrong. The Applicant has
done exactly what was required of him in the circumstances of this
case:
he submitted and sent the Statutory Notice to the Municipality
(Respondent); he requested their written consent and condonation
for
the late filing/serving of the said Notice, which to date, they have
not given and/or refused to give, and was then left with
no option
other than to apply to this Court for condonation in terms of section
3(4) of the Act.
13.
Mr Pillay, on behalf of the Respondent, persisted with the argument
that the
Applicant should first have issued Summons and only at that
stage, and if the Respondent/Municipality relies on the failure of
the Applicant to serve the Notice within six (6) months after the
incident (when the debt became due) in terms of section 3(2) of
Act
40 of 2002, can and/or should he apply to Court for condonation.
Accordingly, so he argued, this application is premature in
as much
as the Respondent had never indicated, even to date, that it would
rely on the said failure of the Applicant to serve the
section 3
Notice timeously.
14.
This argument falls to be rejected as at least two (2) grounds:
Firstly,
on its own papers
[6]
, the
Respondent made common cause with its insurance company, by agreeing
that the Applicant had served the said notice
out of time
and relying on the said failure in rejecting the Applicant's claims.
Secondly, the provisions of section 3(3) of Act
40 of 2002 are
abundantly clear
that"...
no
legal
proceedings
for
the
recovery of a debt may be
instituted
against an organ
of
state...
"if
such notice
had
not been
given
within
the
prescribed
six (6)
months period, unless the organ of state has consented in writing
thereto, or unless the Court, on application, has granted
condonation
for such late notice.
15.
The Respondent has also raised a technical objection regarding the
founding
affidavit of the Applicant, which it alleges was/is totally
defective. I disagree. The Applicant has in any event cured any
deficiencies
that there might have been - which was merely an
omission by the Commissioner of Oaths, who subsequently confirmed
that it was
a duly sworn and commissioned affidavit.
16.
In the circumstances, the following order is made:
THE
APPLICATION FOR CONDONATION IN TERMS OF SECTION 3(4) OF ACT 40 OF 200
IS GRANTED WITH COSTS.
JJ
MOSES
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
Adv. D.C. Jankowitz
Instructed
by:
Stefan Greyling Inc.
For
the Respondent:
Mr. J. Pillay
Instructed
by:
Pillay Attorneys
[1]
Record, p. 12
[2]
Annexure 'DDS2', p. 12
[3]
'DDS3', p. 29
[4]
Record, p. 30
[5]
'DDS4', p. 34
[6]
Para 27, Record p. 55