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[2017] ZAFSHC 149
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Shannon v Masilonyana Local Municipality (5745/2015) [2017] ZAFSHC 149 (7 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Case
No: 5745/2015
In
the matter of:
MADELEINE
SHANNON
Applicant
and
MASILONYANA
LOCAL MUNICIPALITY
Respondent
CORAM:
DAFFUE,
J
JUDGMENT
BY:
DAFFUE,
J
HEARD
ON:
7 SEPTEMBER 2017
DELIVERED
ON:
7 SEPTEMBER 2017
I
INTRODUCTION
[1]
First applicant is Madeleine Shannon, a widow residing in Klerksdorp,
North West Province. Second applicant is Jessica
Shannon, the
daughter of first applicant. Applicants are the plaintiffs
under the above case number (“the main action”).
The Masilonyana Local Municipality is the defendant in the main
action and the respondent in this application. I shall refer
to
the parties as cited in this application.
[2]
In the main action applicants sue for their alleged loss of support
following upon the death of Mr Gary Shannon (“the
deceased”),
first applicant’s deceased husband and second applicant’s
father. It is alleged that on 27
July 2013 the deceased
travelled with his motor cycle in the small town of Theunissen, Free
State Province and that he was thrown
off the motor cycle after
driving through a pothole/potholes, alternatively a deep drainage
furrow/ditch in the road at the intersection
of Jan van Riebeeck and
Pienaar Streets. The deceased passed on a few days later as a
result of injuries sustained.
For sake of clarity it is
recorded to be common cause that Theunissen is situated within the
jurisdiction of the respondent municipality.
[3]
Respondent filed a special plea, claiming that the claims should be
dismissed in that applicants failed to give the required
notice in
terms of s 3(2) read with s 3(4) and s 4 of the Institution of Legal
Proceedings against Certain Organs of State Act,
40 of 2002 (“Act
40 of 2002”), alternatively, that such notice was not given
within the stipulated period of six months.
[4]
Applicants now seek condonation for failing to serve the required
notice within the period laid down in s 3(2)(a) of Act 40
of 2002.
They were prepared to accept responsibility for the costs of the
application in the event of it being unopposed,
but not anymore as a
costs order is now sought against respondent. Respondent
decided to oppose the application and the matter
is now ripe for
hearing. Respondent failed to submit heads of argument in
accordance with the directives set out in the Rules
of Practice of
this Division. Its attorney, Mr Rampai, attended the
proceedings, without being robed. At my request
he indicated
that he had no instructions to instruct counsel to argue the
application and the same applied to him. However,
the
opposition of the application was not withdrawn and consequently a
judgment by the court was required.
II
UNDISPUTED
FACTS
[5]
The undisputed facts can be summarised as follows:
(i)
On 27 July
2013 the deceased, the driver of a motor cycle, fell off his bike at
the intersection of Jan van Riebeeck and Pienaar
Streets, Theunissen
and sustained serious injuries (“the incident”).
He died on 31 August 2013, although
causation is apparently still in
dispute.
(ii)
Messrs Podbielski Inc sent a letter of demand dated 29 May 2014 per
registered post to respondent
in terms of s 3 of Act 40 of 2002.
There is a dispute as to when the respondent received the letter.
It blames the
general postal strike for late receipt thereof.
(iii)
The letter of demand was not served timeously, and at best for
applicants, at least about four
months after expiry of the six
months’ period stipulated in Act 40 of 2002.
(iv)
The South African Police Service (“SAPS”) investigated
the incident and the customary
Accident Report (“AR”)
form was completed. Applicants’ attorneys corresponded
with SAPS since November
2013 to obtain copies of the case docket
which they only received in February 2014. Although
respondent’s deponent
avers that he has no knowledge of this
and therefore denies same, such denial does not hold any water
bearing in mind the test
laid down in
Plascon-Evans
and
Wightman
referred to
infra
.
(v)
Applicants’ attorneys also applied for copies of the record of
the inquest proceedings which
they eventually received, although
after expiry of the six months’ period.
(vi)
Summons was served upon respondent in December 2015, some sixteen
months after the claims had
arisen. Respondent’s plea,
including its aforesaid special plea, was filed on 25 February 2016.
(vii)
On 25 August 2016 a rule 37 conference was held. It was agreed
that the court should be
approached for a separation of the issues,
in particular that the merits – paragraphs 1 to 6 and 9 of the
particulars of
claim, read with the special plea and other
corresponding paragraphs of the plea - be heard and adjudicated
first,
quantum
to stand over. During a rule 37(8) conference held on 28
November 2016 Murray AJ issued an order of separation of issues
as
agreed upon. On 12 June 2017 a further rule 37 conference was
held, this time attended to by counsel of both sides.
In
paragraph 7 of the minutes the parties agreed that applicants would
bring their condonation application
“
in
due course”
for
it to be heard at the forthcoming trial.
(viii)
The main action was set down for hearing, but on 28 June 2017 it was
postponed to 24, 25 and
27 October 2017, the reason being that a
belated condonation application in terms of Act 40 of 2002 was
brought by applicants at
the eleventh hour. The idea was to
move the application on 27 June 2017, being the first day of the
trial. However,
the application was served on respondent on the
27
th
only, leaving no opportunity for it to respond meaningfully.
The costs occasioned by the postponement were reserved.
(ix)
The condonation application was set down for 10 August 2017, but
again postponed to 7 September
2017, costs to be costs in the cause,
the reason being that respondent’s answering affidavit was
filed on 8 August 2017 only.
(x)
Applicants’ claims have not become prescribed and the first
requirement of s 3(4)(b) of
Act 40 of 2002 has been met. It
needs to be considered whether the second and third requirements of
the sub-section to which
I shall refer
infra
have
been met.
(xi)
As mentioned the application for condonation was issued and served on
27 June 2017, thus approximately
sixteen months after receipt of
respondent’s special plea.
III
THE DISPUTE
[6]
Respondent opposes the application by averring firstly, that
applicants have not shown good cause why their failure to serve
the
required notice timeously should be condoned and secondly, that
applicants failed to show that it was not unreasonably prejudiced.
[7]
It is not specifically averred in the answering affidavit that the
application should be dismissed insofar as it was brought
at such a
late stage of the proceedings and about sixteen months after filing
of the special plea. This may be seen as an
inexplicable delay,
bearing in mind the considerations applicable in adjudicating
applications for condonation in general, and
I shall consider this
infra
.
IV
APPLICABLE LAW
[8]
In the pre-constitutional era of our country several statutes existed
from time to time which placed serious limitations on
claimants to
have their disputes with organs of state adjudicated by courts of
law. It is apposite to refer to just two such
provisions, to
wit s 113(1) of the Defence Act, 44 of 1957 and s 32 of the Police
Act, 7 of 1958. These sections contained
similar provisions and
I merely quote ss 113(1):
“
No civil action shall be
capable of being instituted against the state or any person in
respect of anything done or omitted to be
done in pursuance of this
Act, if a period of six months … has elapsed since the date on
which the cause of action arose,
and notice in writing of any such
civil action and of the cause thereof shall be given to the defendant
one month at least before
the commencement thereof.”
The
effect hereof is that a written demand had to be given within five
months from the cause of action and the summons had to be
instituted
within six months from the date of the cause of action, failing which
the claimant was non-suited. These Acts
conferred no discretion
upon courts to grant condonation for non-compliance.
[9]
Not surprisingly, s 113(1) of the Defence Act was declared
inconsistent with s 22 of the
interim
Constitution
and invalid in
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) at 136 B. During or about the time that
Mohlomi
was referred to the Constitutional Court and/or adjudicated by that
court, the legislature found it necessary to repeal the Police
Act of
1958 and replace same with the
South African Police Service Act, 68
of 1995
.
Section 57
of this Act replaced s 32 of the previous
Act. The new Act made provision for condonation in the event of
non-compliance
with the demand requirements of this section.
[10]
Since the beginning of the previous century several eminent judges
questioned the adverse effects on the rights of claimants
of similar
statutory provisions to those found in the aforesaid two Acts.
In
Benning
v Union Government (Minister of Finance)
1914 AD 180
Innes JA described these limitations at 185 as:
“
(c)onditions
which clog the ordinary right of an aggrieved person to seek the
assistance of a court of law.”
Botha
JA mentioned in
Avex
Air (Pty) Ltd v Borough of Vryheid
1973 (1) SA 617
(A) at 621 F – G the following:
“
Hampering
as it does the ordinary rights of an aggrieved person to seek the
assistance of the courts sec. 254(2) must be restrictively
interpreted…..”
More
recently Corbett CJ echoed these comments in
Administrator
Transvaal and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 764 E, stating that the provision in that
matter “
undoubtedly
hampers the ordinary rights of an aggrieved person to seek the
assistance of the court.
”
However,
as stated by Majiedt AJA (as he then was) in
Minister
of Agricultural and Land Affairs v C J Rance (Pty) Ltd
2010 (4) SA 109
(SCA) at para [13], relying on
Mohlomi
supra,
the legitimacy and constitutionality of insistence on a notice in
terms of s 3 of Act 40 of 2002 (or similar provisions in the
past)
are not in issue.
[11]
Act 40 of 2002 was promulgated as there was a need to harmonise and
create uniformity in respect of the different expiry periods
contained in the different laws, but more importantly to give effect
to our Bill of Rights. I quote the following from the
preamble
of the Act:
“
And bearing in mind that - …
·
the Bill of Rights is the
cornerstone of democracy in South Africa and that the state must
respect, protect, promote and fulfil
the rights in the Bill of
Rights;
·
section 34 of the Constitution
provides that everyone has the right to have any dispute that can be
resolved by the application
of law decided in a fair public hearing
before a court or, where appropriate, another independent and
impartial tribunal or forum;
·
the right to access to courts
may be limited to the extent that the limitation is reasonable and
justifiable in an open and democratic
society based on human dignity,
equality and freedom as contemplated in section 36 of the
Constitution;”
Act
40 of 2002 does not give
carte blanche
to litigants to ignore
the provisions of the Act in a reckless manner. Courts of law
shall not condone the actions of such
litigants, bearing in mind the
requirements of s 3(4)(b) of the Act which subsection reads as
follows:
“
3(4)(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.”
As
indicated
supra
the first requirement is not in dispute and
therefore it is only necessary to concentrate on the second and third
requirements,
i.e. good cause for failing to comply with the
requirements of s 3 and prejudice.
[12]
The
locus
classicus
is
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA). In this regard Heher JA remarked as
follows at para [10]:
“
[10]
The second requirement is a variant of one well known in cases of
procedural non-compliance.
… ‘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 of other
persons
or parties to the delay and the applicant’s
responsibility therefor.”
In
para [12] at 317 C the learned judge continued as follows:
“
[12] …
‘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)
(sic – it
should read s 3(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.”
(
emphasis added)
I
must also consider the delay in bringing the application for
condonation as it might be relevant in adjudicating whether
applicants
are entitled to relief. Heher JA dealt with this
issue in
Madinda
supra
in a matter where the plaintiff brought the application for
condonation nine months after the letter of demand was rejected by
the Minister of Safety and Security. The following passages are
quoted to emphasise the viewpoint of the Supreme Court of
Appeal:
“
[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’
.
…
[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
. ...
…
[28]
…
But when he received
that reply it must have been clear that all hope of concession was
past. It was the delay thereafter until
July 2006 which he should
have explained but did not.
Applications
for condonation should in general be brought as soon after the
default as possible. Thereby possible further
prejudice to the
other party and misconception as to the intentions and bona fides of
the applicant can be lessened. A delay in
making the application
should be fully explained. The failure to do so may adversely affect
condonation
or it may
merely be a reason to censure the applicant or his or her legal
advisers without lessening the force of the application.
I think that
the latter is the correct attitude to take in the present matter in
relation to the evaluation of whether condonation
should be granted.
Under the present statutory dispensation there is no time limitation
on the institution of action and the appellant
had until September
2007 (when her claim would have prescribed) to issue summons.
The
matter was clearly very much alive during the first half of 2006 and
the State had no reason to think otherwise. Nor has the
respondent
suggested that it was prejudiced or misled by the additional delay.
”
(emphasis added)
[13]
In
C J
Rance supra
the general principles pertaining to the issues
in
casu
were merely restated. In that matter almost two and a half
years lapsed before the plaintiff served a notice of its intention
to
institute proceedings on the Minister. The delay was not
explained. The court referred at para [13] to the so-called
conventional explanation for demanding prior notification of
intention to sue organs of state mentioned in
Mohlomi
supra
to
the effect 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.”
In
C J
Rance
the organ of state clearly demonstrated that it would be prejudiced
if the late notice of demand was condoned insofar as it did
not have
any opportunity to do an investigation of its own pertaining to the
fire that had allegedly broken out on State property
and damaged the
plaintiff’s assets. Also, it was the court’s view
that no factual foundation was laid for the
court to establish
whether there was some prospect of success in the action to be
instituted.
[14]
In
MEC
for Education, KZN v Shange
2012 (5) SA 313
(SCA) the court found that good cause had been shown. The
learner could not be blamed for any delay or failure. He
was
still a minor when his cause of action arose and the court found that
he was reliant on others to prosecute his claim and that
they had
failed him. The attorney’s mistake to direct the notice
of demand to the Minister of Education instead of
the MEC for
Education, KZN was excused by the court
a
quo
and
although the Supreme Court of Appeal referred to case law dealing
with attorneys’ mistakes that could be attributed to
their
clients, it found that no blame for any delay or failure could be
attributed to the respondent. See also
Dauth
and others v Minister of Safety and Security and others
[2008] ZANCHC 26
;
2009 (1) SA 189
(NC) at para
[8]
.
[15]
As to costs, in para [24] of
Shange
supra
the
court approved the viewpoint of Cloete JA in
Premier
of the Western Cape Provincial Government v Lakay
2012 (2) SA 1
(SCA) in para [25] to the effect that applications for condonation in
terms of Act 40 of 2002 should be considered differently
from normal
applications for condonation of non-observance of the rules of court
and that if an applicant for condonation in terms
of the Act
succeeds, there should be no reason why he should not be awarded his
costs.
[16]
Finally, I wish to refer to an unreported judgment by myself, with
whom Kruger and Ebrahim JJ concurred, to wit
Minister
of Safety and Security v Hilton William Barry,
case
number A103/2012, a judgment delivered on 20 June 2013. In that
judgment I summarised the applicable legal principles
and I richly
borrowed from it herein.
V
APPLICATION OF THE
LAW TO THE FACTS
[17]
The facts in
C J Rance
supra
differ materially from the
facts in the present application. In the
C J Rance
case
the court was concerned with a claim relating to damage caused by a
fire. Investigations had to be done as to who the
owner of the
land was upon which the fire originated, and the Supreme Court of
Appeal found at para [46] that the company failed
to establish good
cause, particularly also in respect of a period of at least seventeen
months which was not explained. The
notice was sent two and a
half years after the cause of action had arisen. The Supreme
Court of Appeal did not have to consider
any delay between the
defective notice and/or filing of a special plea and the launch of
the application for condonation.
In casu
the SAPS
compiled a report. In fact, the AR report was prepared by the
same officer who came across the seriously injured
deceased, still
lying in the street. An inquest was also held. All
aspects pertaining to the incident were recorded.
Respondent’s
personnel will be able to say whether or not the version provided by
applicants’ witnesses, and the experts
in particular, is
correct or not. The scene of the incident has not changed
materially and respondent was at all times in
a position to do its
own investigations. We are not concerned with a huge
metro municipality and an injury allegedly
sustained by a pedestrian
falling on a slippery pavement down town and only reporting the
incident to such metro one or two years
later. Surely, in such
instance it would be virtually impossible for the metro to
investigate in order to establish whether
it should concede or
contest liability.
[18]
Bona
fides
play an important role in considering good cause. It is evident
that applicants very soon after the incident sought legal
advice and
that their attorneys acted swiftly to do the necessary
investigations. Bearing in mind that the only eyewitness
- as
far as I could gather from the information before me - passed away,
the applicants could not issue a letter of demand without
ascertaining what could have caused the incident that led to the
breadwinner’s death. The letter of demand, even accepting
that it was sent out of time and reached the respondent’s
offices much later, sets out the facts relied upon and it should
have
been clear to any reasonable reader thereof that applicants intended
to institute action to claim loss of support due to the
negligence of
respondent as alleged in the letter with sufficient clarity. It
is clear that the applicants intended to pursue
their action against
respondent at all times. In the words of Heher JA in
Madinda
supra
,
this was a matter that was clearly very much alive at all relevant
times and the respondent had no reason to think otherwise.
[19]
In its plea on the merits respondent denies about every allegation in
the particulars of claim, but bearing in mind the AR
report of the
SAPS it can hardly be disputed that an incident occurred causing the
deceased to lose control of his motor cycle
and sustaining injuries
that eventually led to his death. As mentioned the SAPS were on
the scene immediately after the incident
had occurred. In fact,
respondent now admits the incident. It is apparent from the AR
report that (a) the deceased
lost control of his motor cycle, (b)
regarding the quality of the road it was indicated that the road
contained a pothole and (c)
the road signs were not clearly visible
and/or in good order. I considered the reports of the experts
and I am satisfied
that, without having to come to a final
conclusion, applicants might be able to prove at least one percent
negligence, and this
will be sufficient to succeed on the merits.
The prospects of success are not really put in issue by
respondent in its answering
affidavit. The following is stated
in paragraph 6 of the answering affidavit:
“
I
however wish to state that the deceased contributed to his death in
that he failed to observe the road signs and was driving at
a high
speed which resulted in him losing control of his motor cycle.”
It is not respondent’s
case that the deceased was solely responsible for his death. It
cannot be found that applicants’
claims are spurious or without
merit.
[20]
In the answering affidavit applicants’ attorneys are blamed for
not acting speedily in order to allow them to serve the
required
notice timeously. The application for condonation is apparently
opposed on the basis of absence of “good cause”
and
alleged prejudice. However, no factual basis was
laid for a finding that respondent was unreasonably prejudiced
as a
result of any delay. Such averment could surely not be made
with any conviction. Theunissen is such a small town
that I
would be amazed if the news of a motor cycle crash and serious
injuries to the driver would not spread like a veldfire out
of
control during windy conditions. Respondent will not be
disadvantaged at the trial of the main action, whether or not
it
received late notice and/or the condonation application was brought
at the eleventh hour. If respondent was prepared to
concede
liability after investigating the matter, it might argue that if
timeous notice was given, institution of action could
have been
avoided. This might have a bearing on costs. This is not
what transpired as the merits are still contested.
As is
evident, it is not and cannot be respondent’s case that it will
be unreasonably prejudiced because of evidence being
lost or for
whatever unknown reason.
[21]
In a condonation application a court considers the merits together
with the grounds advanced for the failure. As stated
in
Madinda
supra
,
and quoted above, strong merits may mitigate fault whilst no merits
may render mitigation pointless. It is also accepted
that the
interests of justice play an important role in condonation
applications and that it is expected of an applicant to set
out fully
the explanation of his delay during the entire period of the delay
and such explanation must be reasonable. Also,
a condonation
application must be brought as soon as the party concerned realises
that it is required. Bearing all this in
mind, Heher JA in
Madinda
highlighted the two important elements to be considered in
adjudicating applications in terms of s 3(4)(b), namely the subject’s
right to have his case tried by a court of law and the right of the
organ of state not to be unduly prejudiced.
In
casu
no
facts are alleged as mentioned
supra
and it
is not even vaguely suggested that prejudice has been or will be
suffered by respondent due to applicants’ non-compliance.
In this regard I wish to refer to the following
dictum
by Heher JA in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
,
quoting from para [13]:
“
[13]
A real, genuine and bona
fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be
instances where a bare denial meets the requirement because there is
no other way open to the disputing
party and nothing more can
therefore be expected of him. But even that
may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing party must necessarily possess knowledge
of
them and be able to provide an answer (or countervailing evidence) if
they be not true or accurate but, instead of doing so,
rests his case
on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is satisfied.
I say ‘generally’ because factual averments seldom stand
apart from a broader matrix of circumstances all of which
needs to be
borne in mind when arriving at a decision.
A
litigant may not necessarily recognise or understand the nuances of a
bare or general denial
as
against a real attempt to grapple with all relevant factual
allegations made by the other party.
But
when he signs the answering affidavit, he commits himself to its
contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There is thus a serious
duty imposed upon a legal adviser who settles an answering
affidavit
to ascertain and engage with facts which his client disputes and to
reflect such disputes fully and accurately in the
answering
affidavit.
If that does not
happen it should come as no surprise that the court takes a robust
view of the matter.”
(emphasis
added.)
[22]
There is no
onus
on an
applicant for condonation to prove his/her case on a balance of
probabilities. The court must merely be satisfied that
the
three requirements contained in s 3(4)(b) have been met.
Although applicants and/or their attorneys might be blamed for
the
delay in bringing the application for condonation, there is no
obvious prejudice to respondent and applicants provided a detailed
explanation as to why the notice was not served earlier.
[23]
The late bringing of the condonation application can be disposed of
in light of the comments by Heher JA in
Madinda
supra
with
particular reference to paras [14], [20] and [28] of the judgment.
Special pleas are often not dealt with speedily.
Often, issues
raised in special pleas fall away or are resolved by the parties.
No condonation is required if the organ of
state does not object to
the absence of notice or defective notice. See:
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) at para
[10]
. Further, it is the duty of
the attorney, not the client, to do something with the special plea,
e.g. set it down for hearing.
The fact that the application for
condonation was only brought after sixteen months cannot be held
against the applicants.
See Shange and
Dauth
supra.
I
come to this conclusion even though there was not a full explanation
as to why the condonation application was not brought immediately
after receipt of the special plea, or at the latest immediately after
the first rule 37 conference.
The
overall impression created by the undisputed facts is such that I am
satisfied that applicants are entitled to have their case
tried by a
court of law.
[24]
I refer to
Shange
and
Lakay
supra
and am satisfied that applicants are entitled to their costs.
The application was previously enrolled for hearing on 10 August
2017. Respondent failed to file its answering affidavit
timeously. It was filed after closure of the roll only and
as
late as 8 August 2017, a mere two days before the matter was to be
heard. Respondent should have been ordered to pay the
wasted
costs, but the parties agreed that costs should be costs in the
application. Respondent decided not to appoint counsel
to argue
the matter today and further unnecessary costs were incurred in that
applicants’ senior counsel from Pretoria had
to come to
Bloemfontein to argue the matter, which could have been avoided if a
timeous notice was served by respondent abiding
by the decision of
the court. I considered granting punitive costs against
respondent, and even postponing the application
to allow the
administrator of respondent, Mr Tau, an opportunity why he should not
be ordered to pay the costs of the application
de
bonis propriis.
Mr
Alberts on behalf of applicants submitted that although a punitive
costs order might be appropriate, he was not pressing
for such order
as no notice to that effect was given to respondent.
VI
ORDERS
[25]
(1)
The applicants’ failure to serve the notice
contemplated in
s 3(1)(a)
of the
Institution of Legal Proceedings
Against Certain Organs of State Act, 40 of 2002
, within the period
laid down in s 3(2)(a) of the Act is hereby condoned.
(2)
Respondent is ordered to pay applicants’ costs of the
application on an opposed basis.
______________
J. P. DAFFUE, J
On behalf of the
applicants: Adv G W Alberts SC
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of the
respondent: No appearance
Rampai Attorneys
BLOEMFONTEIN