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[2019] ZAGPPHC 174
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Cervanties Trading CC v City of Tshwane Metropolitan Municipality (43181/2016) [2019] ZAGPPHC 174 (21 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO:
43181/2016
21/5/2019
In
the matter between:
CERVANTIES
TRADING CC
Applicant
V
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
Respondent
JUDGMENT
AC BASSON, J
Parties
[1]
The applicant (plaintiff) is Cervanties
Trading CC and the respondent the City of Tshwane Metropolitan
Municipality (defendant).
Nature
of the application
[2]
This is an application to condone the
applicant's failure to comply with the provisions of section
3(1)(a)
[1]
of the Institution of Legal Proceedings against Certain Organs of
State Act (the Act).
[2]
The applicant also asks for a punitive costs order against the
respondent in the event of its opposition.
Brief
exposition of the relevant facts
[3]
The applicant sets out two claims in the
Particulars of Claim: In "Claim A" the applicant claims an
amount of R 6 002
292.00
(six
million
two thousand two hundred and ninety two rand) (together with
interests) and in "Claim B" an amount of R 8 007
350.00
(eight million seven thousand three hundred and fifty rand) (with
interests).
[4]
The claim in "Claim A" is in
respect of refuse bins allegedly sold and delivered by the applicant
to the respondent. In
essence claim A is for specific performance
i.e. for the payment of an invoice and therefore does not constitute
a debt as contemplated
in section 1 of the Act. The applicant is
therefore in law, not required to deliver a notice in terms of
section 3(1)(a) of the
Act before instituting the claim.
[5]
The claim in "Claim B" is for
d mages allegedly suffered by the applicant as a result of an alleged
breach of an alleged
agreement between the applicant and the
respondent. As the claim in "Claim B" is for damages, it
constitutes a debt as
contemplated in section 1 of the Act and the
applicant was therefore in law required to deliver a notice in terms
of section 3(1)(a)
of the Act before instituting the claim.
[6]
This application relates to the
applicant's failure to deliver the notice in terms of section 3(1)(a)
of the Act in respect of "Claim
B". It is common cause that
the applicant did not deliver such a notice and that it has, until
this application, made no attempt
to deliver such a notice. There
exists no dispute between the parties that the applicant ought to
have delivered a notice in terms
of section 3(1)(a) of the Act before
instituting "Claim B". This application concerns
condonation for its failure to
do so.
Legal Proceedings against
Certain Organs of State Act
[7]
In terms of section 3(1)(a) of the Act,
no legal proceedings for the recovery of a debt may be instituted
against an organ of the
State unless the creditor has given the
relevant organ of State, notice in writing of its intention to
institute the legal proceedings
in question. Section 3(2) of the Act
provides that the notice contemplated in section 3(1)(a) of the Act
must be delivered or served
upon the organ of State in question
"within six months from the date on which the debt became due".
[8]
In addition, the notice must briefly set
out "the facts giving rise to the debt" and "such
particulars of such debt
as are within the knowledge of the
creditor".
[3]
[9]
The rationale for the requirement of a
notification of intention to sue organs of State is clear:
"[13] ... 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'...."
[4]
Condonation
[10]
Where a person has failed to deliver the notice contemplated in
section 3(1)(a) of the Act, section
3(4)(a) of the Act provides that
such a person may apply for condonation of such failure.
[11]
Section 3(4)(b) of the Act provides that
the court may grant condonation if it is satisfied that:
(i)
the debt has not been
extinguished by prescription;
[5]
(ii)
good cause exists for the failure
by the creditor; and
(iii)
the organ of State was not
unreasonably prejudiced by the failure to comply with the provisions
of section 3.
[12]
The court must be satisfied that the
applicant has satisfied
all three
requirements or, as the court in
Minister of Agriculture and Land
Affairs v CJ Rance (Pty) Ltd
put
it:
[6]
"[11]...These requirements
are conjunctive and must be established by the applicant for
condonation."
See also:
Madinda
v Minister of Safety and Security:
[7]
"[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."
A similar view was expressed in
Minister of
Safety and Security v De Witt:
[8]
"[13] The discretion may only
be exercised, however, if the three criteria in s 3(4)(b) are met:
that the debt has not been
extinguished by prescription (at issue in
this case); that good cause exists for the creditor's failure; and
that the organ of
state has not been unduly prejudiced."
The requirement of good cause
[13]
In the matter of
Madinda,
the Supreme Court of Appeals,
relying on
Silber v Ozen Wholesalers
(Pty) Ltd,
[9]
pointed out that the applicant is required to 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. That
court explained what is meant by "good cause":
"[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
0N) at 2271 - 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.
[10]
[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
Gaam
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.)"
[14]
The court thus emphasised that the
determination of "good cause" entails a consideration of
all factors which have a bearing
on the fairness of granting the
relief affecting the proper administration of justice. These factors
include prospects of success
in the proposed action, the reasons for
the delay, the sufficiency of the explanation offered, the
bona
tides
of the applicant, and any
contribution by other persons or parties to the delay and the
applicant's responsibility therefor. The
standard of proof is not one
on a balance of probabilities but rather the "overall impression
made on a court which brings
a fair mind to the facts set up by the
parties".
[11]
[15] The
plaintiff 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".
[12]
[16] Good cause
also involves a consideration of the prospects of success on the
merits of the case.
This consideration requires a balancing act
between the explanation of the delay and the prospects of success.
Strong merits may
mitigate any fault on the part of the applicant in
serving the required notice. The Supreme Court of Appeal in
Madinda
explains:
"[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."
[17]
Any subsequent delay (or as the court in
Madinda
put it: "post-
notification" delays") in bringing the application for
condonation will not form part of the statutory
context within which
the element of good cause is considered.
[13]
The requirement of prejudice
[18]
The legislature specifically requires that a court must consider
whether the organ of State is
not unreasonably prejudiced by the
failure to comply with the provisions of section 3. This exercise
requires a court to balance
the right to access to justice and the
protection of the interest of the state in receiving timeous notice
of intended action.
[14]
[19]
Before the amendment to the Act, the absence of prejudice had been
regarded as an element of
good cause.
[15]
The position has changed after the amendment to section 3. The
requirement to establish that the organ of State will not be
unreasonably
prejudiced by the failure to comply with the provisions
of section 3 now constitutes an independent ground to be considered.
The
Supreme Court of Appeal in
Madinda
explains:
"[15] ... 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."
[20]
It is for the applicant to lay a basis
for the claim of prejudice. It is not for the court to assume
prejudice on behalf of the
applicant:
"[21] The third leg of s
3(4)(b) required the appellant to satisfy the court that the
respondent had not been unreasonably
prejudiced by the failure to
serve the notice timeously. This must inevitably depend on the most
probable inference to be drawn
from the facts which are to be
regarded as proved in the context of the motion proceedings launched
by an applicant. The approach
to the existence of
unreasonable
prejudice (not
simply any level of prejudice, an aspect which the judgment of the
court a
quo
blurs) requires
a common sense analysis of the facts, bearing in mind that whether
the grounds of prejudice exist often lies peculiarly
within the
knowledge of the respondent. Although the onus is on an applicant to
bring the application within the terms of the statute,
a court should
be slow to assume prejudice for which the respondent itself does not
lay a basis."
[16]
Consideration
of the merits Good cause
[21]
Does the plaintiff give a full and
reasonable explanation to excuse the non compliance or, to use
the words of the court in
Madinda:
does the applicant produce
"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"?
[17]
And, are there prospects of success?
[22]
The applicant explains that it intends
relying on a report submitted by Funduzi Forensic Services. This
report recommended,
inter alia,
that
disciplinary action be taken against certain officials pursuant to a
finding that the tender process followed by the respondent
was
"flawed". The respondent does not dispute the appointment
of Funduzi or the accuracy of the quoted paragraphs. The
responded,
did however, contend that the quoted paragraphs are irrelevant as the
respondent was not bound by the recommendations.
It further submitted
that the report further constitutes hearsay evidence and that no case
has been made out as to why the court
should admit hearsay evidence
in this application. It further contended that even if it is assumed
that the respondent was aware
of the alleged fraud, such knowledge
did not translate into knowledge of the fact that the applicant
intended to sue it for damages.
[23]
Other than quoting the report and the
recommendations contained therein regarding the process that was
followed, the applicant fails
to explain why it has prospects of
success. The only allegation that the applicant makes is that it is
clear from the report that
"there was blatantly fraudulent
conduct on the part of the respondent".
[24]
Moreover, the founding affidavit does
not place any facts before the court as to why it dragged its feet
all these years. There
is simply no explanation as to why the section
3(1) notice has not been delivered at the time. More importantly,
there is no explanation
as to why such a notice was not delivered at
all even though the notice would have been late. In argument the
applicant tried to
argue that the letter addressed to the respondent
dated 8 May 2013, somehow could be read as also informing the
respondent of Claim
B. Firstly, no such a case is made out in the
founding affidavit, and secondly, having regard to the notice, it
cannot be interpreted
as incorporating "the facts giving rise to
the debt" and "such particulars of such debt as are within
the knowledge
of the creditor".
[18]
[25]
I am not persuaded in light of the
paucity of facts provided in respect of the prospects of success and
the absence of a proper
explanation as to why the notice has not been
delivered (even after it had been alerted to the fact that such a
notice is required).
In light of the aforegoing, I am not persuaded
that the applicant established compliance with the requirement of
"good cause".
[26]
In addition to the aforegoing, and
conjointly thereto, I am not persuaded that the applicant has
established that the organ of state
was not unreasonably prejudiced
by its failure to serve the notice in terms of section 3(1) of the
Act.
Prejudice
[27]
As already pointed out, the absence of
unreasonable prejudice must be established by the applicant as a
separate or self-standing
requirement. The onus rests on the
applicant to set out in some detail that the respondent would not
suffer any unreasonable prejudice
as a result of the delay.
[28]
The applicant has not placed any facts
before the court in its founding affidavit as to why the respondent
would not be unreasonably
prejudiced by its failure.
[29]
It was only in argument that the
applicant endeavoured to make out a case that the respondent will not
suffer any prejudice and
to make out a case that, because the tender
documents are available, it would not be difficult to deal with the
alleged unlawfulness.
Unfortunately, no such case has been made out
in the founding affidavit. Essentially what the applicant is asking
this court is
to assume that there will be no prejudice without
having made out such a case in their papers.
[30]
The respondent, on the other hand,
contended that it will indeed suffer prejudice if condonation is
granted: Employees who were
directly involved in the applicant's
appointment are no longer readily available to assist in defending
the applicant's claim.
A period of more than five years has passed
since the events giving rise to the applicant's alleged claim for
damages. It further
contended that the administration of justice has
also been negatively affected by the applicant's failure to serve the
notice timeously.
It further contended that the applicant has, in any
event, not established that it will be prejudiced, if condonation is
not granted:
A court cannot assume that the applicant will suffer
prejudice if condonation is not granted in circumstances where the
applicant
has not alleged it.
[31]
I am in agreement with the respondent's
submissions. The respondent is contending precisely what the
Constitutional Court in
Mohlomi v
Minister of Defence
warned
against
[19]
:
"[11] 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."
[20]
Conclusion
[32]
In conclusion: I am not persuaded that
the applicant has made out a proper case for condonation in terms of
section 3(1)(a) of the
Institution of Legal Proceedings against
Certain Organs of State Act and the application therefore falls to be
dismissed.
Costs
[33]
The applicant asks for costs on a
punitive scale in the event of opposition. The respondent did not
insist on a costs order on a
punitive scale. The application is
therefore dismissed with costs including the costs consequent upon
the employment of two counsel.
Application for the late filing
of the replication
[34]
The applicant also brought an
application that the late filing of the replication be condoned. This
application was argued together
with the first application for
condonation.
[35]
Despite the fact that an application for
condonation for the late filing of the replication served before this
court, the applicant
in argument (and in the further Heads of
Argument filed on behalf of the applicant, changed tack. It now
argued that the replication
is in fact an amendment after pleadings
closed and should be considered as such. Although the principles
applicable to amendments
are trite
[21]
no formal application to amend, served before the court. All that
served before the court was an application to condone the late
filing
of the applicant's replication.
[36]
I have already dismissed the application
for condonation in terms of section 3(1)(a) of the Institution of
Legal Proceedings against
Certain Organs of State Act. The latter
application only has bearing on Claim A and not Claim B of the
Particulars of Claim.
[37]
The applicant explains in its affidavit
in support of condonation the reasons for the late filing of its
replication. According
to the applicant, it requested Advocate Snyman
to consider whether it was necessary to file a replication in light
of the respondent's
(the defendant's) plea. Advocate Snyman failed to
act and his mandate was terminated. New counsel was briefed and the
applicant
was advised that it was indeed necessary to file a
replication. The replication was filed on 18 June 2018.
[38]
The applicant submitted that it will not
be able to proceed with Claim B if the defence raised by the
defendant in paragraph 3.2
and 3.3 (of the defendant's plea) succeed.
Having decided that condonation is not granted for the late filing of
the notice in
terms of section 3(1)(a) of the Institution of Legal
Proceedings against Certain Organs of State Act it is, in my view,
now academic
to decide the condonation application for the late
filing of the replication in light of the applicant's submission that
it will
not be able to proceed with Claim B, if the defence raised by
the defendant is allowed to stand.
[39]
I am, in any event, apart from the fact
that the replication is rendered moot by this court's order, not
persuaded that a proper
case for condonation has been made out. The
respondent delivered its plea on 15 August 2016. The applicant had
until 29 August
2016, to deliver a replication if so advised. Despite
the fact that Advocate Snyman has failed to draft a replication, the
applicant
waited almost two years before it appointed new counsel (on
15 May 2018). There is simply no explanation for the complete
inaction
for the period between August 2016 and June 2018 when the
replication was ultimately filed, apart from blaming counsel for
dragging
his heals. Moreover, Advocate Snyman presided over a
pre-trail conference which was held on 17 May 2017 - almost a year
from the
date on which the replication was required to have been
delivered. No mention was made regarding the necessity to file a
replication.
[40]
Apart from the fact that there is no
proper explanation for the delay, the delay is excessive. The
applicant has also not addressed
any prejudice that the respondent
may suffer as a result of the delay. All it states is that it (the
applicant) will suffer prejudice
if the replication is not allowed.
[41]
In respect of the prejudice that it will
suffer if condonation is granted, the applicant bases its claim on a
valid agreement between
the parties although it admits that the
suspensive conditions subject to which it was appointed were not
fulfilled. In the replication,
the applicant now seeks to introduce
an alleged waiver of these suspensive conditions based on the conduct
of the respondent's
employees whose identities are not stated in the
replication. This, the respondent submitted, is prejudicial as
several of its
employees dealt with the matter.. Further, the
replication also seeks to widen the scope of the applicant's case by
relying on
an alleged representation by conduct without identifying
the people whose conduct the applicant seeks to reply upon for the
alleged
representation. The respondent submitted that it should
further be taken into account that a long period of time has passed
since
the suspensive conditions were required to have been fulfilled
and that it would be difficult for the respondent to locate the
witnesses who may still have a reliable recollection of what happened
many years ago.
[42]
Are there reasonable prospects of
success? It is difficult to assess prospects in light of the fact
that the applicant has significantly
expanded the ambit of its case
in the replication. However, it cannot be ignored that the applicant
has not, for example, laid
out a factual basis for the claim that the
respondent has waived its rights to require of the applicant to
comply with the requirements
set in the contract: There is a
presumption against waiver of rights. This presumption places an
onerous onus on the applicant
to prove that a party to the contract
had waived its contractual rights.
[22]
I am thus not persuaded that there are reasonable prospects of
success. Lastly I am not persuaded that the applicant has established
that it would be in the interest of justice to grant the condonation.
[43]
In the event, the application for
condonation for the late filing of the replication is dismissed with
costs including the costs
consequent upon the employment of two
counsel.
[44]
In the event the following order is
made:
1.
The application for condonation in terms
of section 3(1)(a) of the Institution of Legal Proceedings against
Certain Organs of State
Act is dismissed with costs including the
costs consequent upon the employment of two counsel.
2.
The application for condonation for the
late filing of the replication is dismissed with costs including the
costs consequent upon
the employment of two counsel.
AC BASSON
JUDGE OF THE HIGH COURT
Appearances:
For
the applicant:
Adv A Vorster
Instructed
by:
Albert Hibbert Attorneys
For
the respondent
:
Adv W R Mokhari SC / Adv K Magano
Instructed
by:
Gildenhuys Malatji Inc
[1]
" 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."
[2]
Act 40 of 2002.
[3]
Section 3{2)(b)(i) and{ii) of the Act.
[4]
Minister of Agriculture and Land Affairs v G Rance (Pty) Ltd
2010
(4) SA 109
(SCA) at para (13).
[5]
The respondent in this matter does not rely on prescription.
[6]
2010 (4) SA 109 (SCA.)
[7]
2008 (4) SA 312
(SCA).
[8]
2009 (1) SA 457 (SCA).
[9]
1954 (2) SA 345 (A)
[10]
My emphasis.
[11]
Madinda
at para (8).
[12]
Ibid
at para [11].
[13]
Ibid
at para [14].
[14]
Ibid
at para [15].
[15]
Ibid
at para [15].
[16]
Ibid
at para [21].
[17]
Ibid
at para [12].
[18]
Section 392)(b)(i) and (ii) of the Act.
[19]
1997 (1) SA 124 (CC).
[20]
Mohlomi
ad para (12). The Constitutional Court did, however,
quality this statement by pointing out that there is no hard and
fast rule
in determining what constitutes an inordinate delay and
that the facts of each matter must be considered.
[21]
See in this regard
Randa v Radopile Projects CC
2012 (6) 128
(GSJ) at [37} ;
Rustenburg Platinum Mines Ltd v Industrial
Maintenance Painting Services CC
2008 JDR 1203 (SCA),
2008 ZASCA
108
at para
[21]
and
Benjamin v Sobac South African Building and
Construction (Pty) Limited
1989 (4) SA 940
(C) at 9588.
[22]
As the Court in
Le Roux v Odendaal and Others
1954 (4) SA 432
{N) at 441C - E pointed out: "A consideration of the evidence
in the light of the above factors satisfies me that the defence
of
waiver has not been established. The
onus
of course lies upon
second respondents. In the case of
Kannemeyer v Gloriosa,
1953
(1) SA 580
at p. 585 (W), ROPER, J., collected the authorities and
came to the conclusion that, while such an
onus
could be
discharged on a balance of probabilities,
'the Court must take into account the unlikelihood, the strong
improbability, that a man will lightly waive a right conferred
upon
him by law'.
That
dictum,
which I respectfully accept, is no less applicable to
a right conferred by contract. So we start here with the strong
improbability
that applicant would give up her right of
pre-emption."