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[2016] ZAFSHC 42
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Van Niekerk and Another v Van Jaarsveld and Another (5035/2014, 3310/2013) [2016] ZAFSHC 42 (3 March 2016)
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Note: Certain personal/private details of parties or witnesses
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 5035/2014
In
the matter between:
WILLEM
MAAS VAN
NIEKERK
......................................................................
1
st
Applicant/Plaintiff
MAGDALENA
JOSINA VAN
NIEKERK
........................................................
2
nd
Applicant/Plaintiff
(néé
NEETHLING)obo NICOLAAS JACOBUS
VAN
NIEKERK
And
Case
No.: 3310/2013
MARIA
JOHANNA VAN
JAARSVELD
......................................................
2
ND
Respondent/Plaintiff
MEC
FOR POLICE, ROADS,
TRANSPORT,
FREE
STATE
....................................................................
1
ST
Respondent/ Defendant
HEARD
ON:
25 February 2016
JUDGMENT
BY:
C. REINDERS, J
DELIVERED
ON:
3 MARCH 2016
[1]
On 12 May 2012 Willem Maas van Niekerk (the deceased) was driving on
the R716 road between Heilbron and Deneysville, at the
Oranjeville
T-junction (the road) when he drove through the T-junction, lost
control of his vehicle, collided with a fence pole
and overturned the
vehicle (the incident). The deceased sustained fatal injuries.
[2]
Action was instituted under case number 3310/2013 by Maria Johanna
van Jaarsveld (the Van Jaarsveld plaintiff) against the MEC
for the
Department of Police, Roads and Transport: Free State (the defendant)
as being the responsible entity for the maintenance
and the upkeep of
the road. Willem Maas van Niekerk Junior and Magdalena Susanna
van Niekerk, on behalf of her minor son
[N…..] [J…….]
van [N…….], (the Van Niekerk plaintiffs) likewise
instituted action under
case nr 5035/2014 against the Defendant as
being the responsible entity for the maintenance and the upkeep of
the road. All the
plaintiffs claim loss of support due to the death
of the deceased in the incident. The defendant brought an application
for consolidation
of the aforementioned actions, which order was
granted on 19 March 2015. For the sake of clarity I shall refer
to the parties
as indicated in this paragraph.
[3]
On 22 September 2014 the Van Niekerk plaintiffs served a notice in
terms of section 3(1) of the Institution of Legal Proceedings
against
Certain Organs of State Act 40 of 2002 (the Act) on the defendant,
followed by summons being issued on 18 November 2014.
The defendant
raised a special plea on non-compliance with the provisions of
section 3(2)(a) of the Act and did not consent to
the late serving of
the statutory notice. The Van Niekerk plaintiffs now seek condonation
in terms of section 3(4)(a) of the Act.
[4]
The applicable provisions of section 3 of the Act read as follows:
“
(4)(a)If
an organ of State relies on a creditor’s failure to serve a
notice in terms 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 hads 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.”
[5]
It is trite that section 3(4)(b) circumscribes a court’s power
to grant condonation by requiring that it be satisfied
that all the
requirements as set out are met. These requirements are conjunctive
and must be established by the applicant.
See:
Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010 (4) SA 109
(SCA)
at par [11].
[6]
The cause of action arose on 12 May 2012 and summons was issued on 18
November 2014. I am satisfied that the first requirement
in
considering condonation, namely that the debt has not been
extinguished by prescription, has been met.
[7]
I next turn to the requirement that the organ of State was not
unreasonably prejudiced by the failure to serve the statutory
notice
within the prescribed six month period. In the founding affidavit of
this application for condonation it is stated that
the defendant was
already made aware of the incident during April 2013 when the Van
Jaarsveld plaintiff’s statutory notice
was served on the
defendant. In their opposing affidavit defendant does not deny
being aware of a possible loss of support
claim, nor is it denied
that it would be unreasonably prejudiced by the Van Niekerk
plaintiffs’ failure to give notice within
the prescribed time.
Defendant chose not to deal with the issue of prejudice but rather
indicated differences between the application
in
casu
and the condonation application by
the Van Jaarsveld plaintiff which was not opposed. The Van Niekerk
plaintiffs aver that defendant
will not be unduly prejudiced if
condonation is granted, the defendant in turn does not allege or
complain of any prejudice. I
am at ease therefore to find that that
the defendant was not unreasonably prejudiced by the late filing of
the statutory notice
by the Van Niekerk plaintiffs.
[8]
The remaining requirement is whether good cause for failing to
deliver the statutory notice was established by the Van Niekerk
plaintiffs. In
Madinda v
Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at para
[8]
it was held that an applicant’s
burden of establishing good cause has to be discharged not on a
balance of probabilities,
but rather on the overall impression made
on the court which brings a fair mind to the facts set up by the
parties.
[9]
Good cause within the meaning of section 3(4)(ii) has not been
defined but may include a number of factors which will vary from
case
to case. These include prospects of success, the reasons for delay,
sufficiency of the explanation offered and the bona fides
of an
applicant.
See:
Madinda
supra
par [10].
[10]
In considering condonation it is instructive to bear in mind why
notices of the kind contemplated in section 3 of the Act have
been
insisted on by the legislature. The conventional explanation for
prior notice to the State organ has been articulated by Didcot
J in
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
CC par
[9] as follows:
“
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.”
[11]
Absence of unreasonable prejudice falls to be decided separately as a
specific requirement to be met by an applicant. Whereas
good cause
primarily concerns the applicant’s conduct and its motives, the
absence of unreasonable prejudice shifts the focus
onto the State
organ and the protection of its interests by receiving timeous
notice.
See:
Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
supra
at par [38].
[12]
In attempting to show good cause the for the delay the Van Niekerk
plaintiffs aver that they have consulted with the attorneys
of the
Van Jaarsveld plaintiff as early as August 2012, whereafter they were
advised of the need to appoint their own attorneys
due to a conflict
of interest. Jacques Bierman Attorneys were recommended to them. They
however mistakenly assumed that the necessary
instructions would be
given to Jacques Bierman Attorneys by the Van Jaarsveld Plaintiff’s
attorneys. It only became clear
to them that they had to formally
instruct Jacques Bierman Attorneys in July 2014, which they did
during August 2014. They have
no knowledge or experience in
litigation matters and were thus not aware of the procedures to be
followed. Both these plaintiffs
are the children of the deceased with
the youngest still a minor.
[13]
The test for the sufficiency of the explanation tendered was
formulated by Schreiner JA in
Silber v Ozen Wholesalers (Pty)
Ltd
1954 (2) SA 345
(A) at 352H-353A:
“
It
is enough for present purposes to say that the defendant must at
least furnish an explanation of his default sufficiently to
enable
the court to understand how it really came about and to assess his
conduct and motives.”
I
will deal with my evaluation of the explanation tendered by the Van
Niekerk plaintiffs shortly.
[14]
It was argued by Me Slingers on behalf of the defendant that the Van
Niekerk plaintiffs had launched a similar application
for condonation
during 24 April 2015, withdrew it and launched the present
application on 27 August 2014 and that this is indicative
of the
absence of good faith. I am not persuaded that this mere fact is
indicative of any absence of good faith on the part of
the Van
Niekerk plaintiffs. What is clear from the the papers is that they
indeed had the intention of instituting a claim against
the defendant
from the start and did in fact consult with an attorney shortly after
the incident. I cannot reasonably conclude
that the Van Niekerk
plaintiffs are therefore not bona fides in bringing this application.
[15]
It was furthermore contended by Me Slingers that the merits do not
favour the Van Niekerk plaintiffs. She relied on the facts
placed
before court in the defendant’s answering affidavit as
extracted from an expert report. Mr Sander on behalf of the
Van
Niekerk plaintiffs pressed hard upon me to strike out the relevant
paragraphs as the report was not annexed to the defendant’s
papers. However, from all the papers before me it was clear that on
request of the Van Niekerk plaintiff’s attorney, the
said
report was indeed discovered by the defendant on 4 November 2015 and
filed with the said attorneys. In essence the expert
deals with the
absence or not of warning signs near the T-junction which could have
prevented the incident. It is then mentioned
in par 21.5 of the
defendant’s opposing affidavit that all of these signs were
“probably” in position at the
time of the incident. It is
trite that the prospects of success of the intended claim play a
significant role. Strong merits may
mitigate fault, no merits may
render mitigation pointless. I am not of the view that it can be
concluded that the Van Niekerk plaintiffs
have no merit based on the
aforementioned.
[16]
The overall impression that I have come to taking all the above
mentioned factors into account is that the Van Niekerk plaintiffs’
attempt at showing good cause for the delay is very thin and indeed
borderline. Had it not been common cause that the Van Jaarsveld
plaintiff had already instituted action and a plea been filed
therein, I would in all probability have declined this application
on
the basis that good cause had not been shown. Adjudicated in
isolation the Van Niekerk Plaintiffs’ affidavit herein
discloses
very scant particularity of either the reasons for their
failure to file the said notice in time or the launching of this
application
at an earlier stage. The founding papers disclose no
allegations of the cause of action, but same was canvassed by the
defendant
in its opposing papers. I would have expected the the Van
Niekerk plaintiffs to have concentrated on the strong case they
believe
they have in order to assist them in obtaining condonation.
[17]
Being challenged in this regard by the deponent to the defendant’s
answering affidavit, the Van Niekerk plaintiffs in
reply deems it
sufficient to merely aver that they “will present a case to
proof that there were inadequate warning signs
warning the road users
that there is a T-junction ahead”. More skimpy and vague
allegations are difficult to fathom.
[18]
Having said that, I cannot merely ignore the objective facts herein
that the Van Niekerk plaintiffs have served a summons in
which the
cause of action to be adjudicated upon, is exactly the same as that
in the Van Jaarsveld summons. The defendant based
thereon brought an
application that these cases should be consolidated and heard as one.
The defendant on the papers have not been
prejudiced at all due to
the late filing of the statutory notice in as far as the preparation
for trial and/or the obtaining of
witnesses or evidence are
concerned. On the contrary, they aver that they have a good defence
to the merits and will
inter alia
rely on the evidence of at least one expert. In all probability
therefore, the Van Jaarsveld matter will proceed on the merits
and
the court will adjudicate the merits. To now deny condonation herein
will not detract from those facts but will merely refuse
the Van
Niekerk plaintiffs of claiming their damages in the event that the
Van Jaarsveld plaintiff is succesful. To my mind the
main purpose of
the statutory notice, to wit to inform the defendant of a potential
claim to enable it to investigate same timeously,
to gather evidence
and to consider its position on this specific cause of action had
been fulfilled to a large extent in the Van
Jaarsveld matter which is
not an issue to be determined therein anymore.
[19]
It is trite that the very purpose of the provision allowing
condonation is to give a court a discretion to determine whether
the
organ of State can rely on con-compliance.
See:
Minister of Safety and Security v de Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA)
at para
[12]
.
[20]
In general terms the interest of justice play an important role in
condonation applications.
See:
Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre
as Amicus Curiae)
[2007] ZACC 24
;
2008
(4) BCLR 442
para [20].
One
of the Van Niekerk Plaintiffs is a minor, and the Van Niekerk
plaintiffs’ claims have been ordered to be heard simultaneously
with the Van Jaarsveld action by order of court and at the request of
the defendant. In the circumstances, having taken all these
factors
into consideration, I am of the view that the interest of justice
requires that condonation be granted instead of dismissing
the
application having the effect that the Van Niekerk plaintiffs may not
ventilate the dispute simultaneously with the Van Jaarsveld
plaintiff.
[21]
Although the reliance placed by the Van Niekerk plaintiffs on good
cause was indeed not flawless, the absence of unreasonable
prejudice
to the defendant played a very significant role in the unique facts
of this matter in weighing up all of the factors
and exercising my
discretion. I am not willing to deprive the Van Niekerk
plaintiffs of the opportunity to have their claim
tested according to
the dictates of law and justice.
[22]
I make the following orders:
1.
Condonation is granted for the First and Second Applicant’s
failure to serve the notice contemplated in
section 3(1)(a)
of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
within the period laid down in section 3(2)(a) of the Act.
2.
Costs of this application to be in action nr 5035/2014.
C.
REINDERS, J
On
behalf of 1
st
and 2
nd
Applicants: Adv. A.
Sander
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of 1
st
Respondent: Adv. H. Slingers
Instructed
by:
The
State Attorney
BLOEMFONTEIN