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[2018] ZANCHC 75
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Laubscher v Road Accident Fund (2018/2013) [2018] ZANCHC 75 (24 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Case
No: 2018/2013
Heard
on: 28/08/2018
Delivered on: 24/10/2018
In
the matter between
CHRISTIAAN
NICOLAI
LAUBSCHER
Plaintiff
And
THE
ROAD ACCIDENT
FUND Defendant
JUDGMENT
PAKATI
J
[1]
The applicant, the Road Accident Fund, applies for leave to appeal
the whole order I granted on 16 November 2017 and against
the
judgment dismissing the application in terms of Rule 42 granted on 14
June 2018. The applicant also applies for condonation
for the late
filing of the application for leave to appeal. This application was
supposed to have been filed by 06 July 2018 but
was received by the
Registrar on 03 August 2018.
[2]
In its affidavit in support of the condonation application the
applicant explains that it is a parastatal dealing with tax payer’s
funds and conducts hundreds of cases every day in respect of various
jurisdictions and Divisions in South Africa. Due to the lapse
of time
since the applicant’s Rule 42 was argued on 25 January 2018 the
plaintiff’s file was archived after three months
of inactivity.
It had to be located and retrieved which took considerable time and
administrative exercise. The motivation for
the application for leave
to appeal had to be endorsed and signed by not less than seven
signatories including the senior claim’s
handler, manager,
senior manager, regional and branch managers. The motivation had to
be sent to the applicant and the first signature
for approval was
obtained on 20 July 2018 and the final one on 26 July 2018. It was
only then that the legal representative of
the applicant was
instructed to proceed with the application.
[3]
The applicant explained further that upon receipt of the motivation
for the application for leave to appeal it had to go through
various
lines and levels of the Road Accident Fund personnel before its
approval. The motivation has to be received by the claim’s
handler, the senior claim’s handler and then the team leader of
the group. It proceeds to the legal costs department for
costs
consideration and back to the litigation department for consideration
and endorsement, thereafter to the senior manager of
operations. It
is then referred to the office of the regional general manager, and
finally for approval by the chief operations
officer.
[4]
Mr Botha, on behalf of the plaintiff, submits that the defendant has
failed to provide the court with an explanation for the
delay or any
reasons why condonation should be granted. He submits further that
the defendant should approach court by way of a
substantive
application on notice to the other party, supported by an affidavit
explaining the delay. For this assertion he relies
on Rule 27 (1)
[1]
which provides:
‘
27
Extension of time and removal of bar and condonation
(1)
In the absence of
agreement between the parties, the court may upon application on
notice and on good cause shown, make an order
extending or abridging
any time prescribed by these rules or by an order of court or fixed
by an order extending or abridging any
time for doing any act or
taking any step in connection with any proceedings of any nature
whatsoever upon such terms as to it
seems meet.’
[5]
The Constitutional Court in
VAN
WYK v UNITAS HOSPITAL
[2]
had this to say about condonation:
‘
[20]
This court has held that the standard for considering an application
for condonation is the interests of justice. Whether it
is in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include but are not limited to the nature of the relief sought, the
extent and cause of the delay on the administration
of justice and
other litigants, the reasonableness of the explanation for the delay,
the importance of the issue to be raised in
the intended appeal and
the prospects of success.
[22]
An applicant for condonation must give a full explanation for the
delay. In addition, the explanation must cover the entire
period of
delay. And, what is more, the explanation given must be reasonable.’
[6]
Even though the applicant did not give a full explanation covering
the whole period, I granted condonation considering the fact
that it
is in the interests of justice to do so and there are prospects of
success on appeal. A possibility exists that another
court might come
to a different decision.
ORDER
1.
Condonation
is granted;
2.
The
applicant’s application for leave to appeal is granted against
the order granted on 16 November 2017 and the judgment
dismissing the
application in terms of Rule 42 granted on 14 June 2018 to the Full
Court of this Division.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
Behalf of the Applicant:
ADV BOTHA
Instructed
by:
ELLIOTT MARIS WILMANS & HAY
On
Behalf of the Respondent:
ADV EIA
Instructed
by:
ROBERT CHARLES ATTORNEY
[1]
Uniform Rules of Court
[2]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477 paras [20] & [22]