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[2016] ZAFSHC 45
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MEC Public Roads And Transport: Free State Province and Another v Van Der Merwe (4617/2010) [2016] ZAFSHC 45 (18 March 2016)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 4617/2010
DATE:
18 MARCH 2016
In
the matter between:
MEC
PUBLIC ROADS AND
TRANSPORT:
...................................................................
1
st
Applicant
FREE STATE
PROVINCE
PREMIER
OF THE FREE
STATE
...................................................................................
2
nd
Applicant
And
JJ
VAN DER
MERWE
..........................................................................................................
Respondent
JUDGEMENT:
MOENG, AJ
HEARD
ON:
MARCH 2016
DELIVERED
ON:
18 MARCH 2016
[1] The applicants
seek leave to appeal against the judgment delivered by this Court on
29 January 2015 in which condonation was
granted for respondent’s
non-compliance with the provisions of section 3(1) (a) of the
Institution of Legal Proceedings Against
Certain Organs of State Act
40 of 2002 (“the Act”). A similar application was
launched on 18 February 2015. I ordered
that heads of argument be
filed and that the application be decided in chambers. I was only
favoured with respondent’s heads
whereas applicant failed to
provide same. I subsequently dismissed the application for leave to
appeal with costs on 20 March 2015.
However, it later transpired that
the heads of argument were indeed filed with the Registrar’s
office but due to an administrative
error, they were not placed in
the court file. The order dated 20 March 2015 was resultantly
rescinded by Van der Merwe J on 10
December 2015.
[2]
In total thirteen grounds of appeal were raised. These are contained
in the notice of appeal and I do not deem it necessary
to repeat
same. Viewed in totality, applicants contend in the main;
·
That I erred in finding that the applicants
were not unreasonably prejudiced by the respondent’s failure to
serve the notice
timeously;
·
That I erred in finding that the applicants
did not contend that the respondent has no prospects of succeeding in
her claim as this
issue was raised in the applicants heads of
argument;
·
By finding that the applicants failed to
lay any basis as to how they would be prejudiced and how evidence
relating to the accident
was extremely compromised is a material
misdirection as it reversed the onus and placed it on the applicants;
·
That I erred in finding that the
post
notification delay in bringing the application for condonation does
not disentitle the respondent to the relief sought
and that the remissness of the attorney should not be attributed to
the respondent and;
·
That I erred in directing that the
applicants should pay the respondent’s costs including the
costs of two counsel. The respondent
was granted an indulgence and
costs should not have followed the event.
[3]
On the strength of the foregoing grounds of appeal, applicants submit
that there is a reasonable prospect of success and that
another Court
may come to a different conclusion. The application is opposed. The
respondent contends that none of the grounds
of appeal have any
substance and that there is no reasonable likelihood that another
Court will arrive at a different conclusion.
[4]
It is trite that leave to appeal should not be granted unless the
applicant satisfies the trial court concerned that he has
a
reasonable prospect of success on appeal. The issues at hand relate
to whether there was merit in the application in terms of
section
3(4) of the Act and whether respondent unduly delayed instituting the
condonation application.
[5]
I concluded in my judgment that it is implausible, based on the
course of events, that the respondent could have consulted and
instructed an attorney to institute an action before expiry of the
statutory notice period. It was not in dispute that the respondent
was admitted to the intensive care unit for some time and was further
hospitalised in the Pasteur Hospital for active rehabilitation
from
29 September 2009 to the beginning of February 2010 when she was
discharged. The statutory notice period had therefore already
expired
when she was discharged. The accident rendered her quadriplegic.
[6]
I further concluded that
a
prima
facie
case
was established which triggered
applicant’s
fundamental right to have her evidence evaluated as against the
opposing testimony of the respondents. I was satisfied
that the
applicant’s contention that they have been extremely prejudiced
by the failure to give notice timeously since the
evidence regarding
the cause of the accident has been extremely compromised, was not
supported by any facts and that the applicants
were attempting to
craft a non-existent prejudice.
I
was satisfied that all three requirements encapsulated in section
3(4)(b)(i), (ii)
and
(iii)
were established. I was also satisfied that the attorney’s
admitted neglect to timeously proceed with the condonation
application
should not in the circumstances, debar the applicant from
relief.
[7]
Mr Notshe SC, counsel for applicants contended in the main that the
burning issue related to the post notification delay of
around 22
months in bringing the condonation application. He argued that the
remissness of the attorney should have been imputed
on the respondent
as litigants must accept responsibility for what their legal
representatives do. This argument was fully canvassed
in para 23 to
26 of my written judgment and I do not intend to restate those
reasons herein save to mention that
the
attorney was not inactive during this period to arouse anxiety from
the applicant as to why the matter does not reach finality.
No
factors were stated by the applicants why the self-confessed
remissness of the attorney should be attributed to the respondent
and
what prejudice they would suffer as a result of the delay in
launching the condonation application.
[8]
As was stated by Boshoff J in
Evander
Caterers (Pty) Ltd v Potgieter
1970
(3) SA 312
(T) at 315–16, condonation should not be lightly
refused if the delay did not prejudice the other party in respect of
the
merits or in the conduct of his case, other than the procedural
advantage gained by him owing to the existence of the time-limit.
Everything should be done to secure a fair trial between the parties
in the litigation so that the disputes and questions between
them may
be settled on their merits. It is a fundamental rule that justice
cannot be done to a person without having given him
an opportunity of
presenting his case.
[9] The
Constitutional Court in
Ferris v FirstRand Bank Ltd
2014
(3) SA 39
(CC) at 43G–44A has laid down that lateness is not
the only consideration in determining whether condonation may be
granted
and that the test for condonation is whether it is in the
interests of justice to grant it. It further held that the
interests-of-justice test is a requirement for
condonation and granting leave to appeal, there is an overlap between
these enquiries.
For both enquiries, an applicant's prospects of
success and the importance of the issue to be determined are relevant
factors.
[10]
Mr Zietsman, counsel for respondent persuasively argued with
reference to the full bench judgment of the North Gauteng High
Court
Pretoria in
Roets v MEC for the
Department of Public Works, Roads and Transport Mpumalanga,
case
A228/12 at para [10], that no prejudice was brought about as a result
of the failure to launch the application for condonation
timeously as
there is no indication that the position would have been different
had the notification being received in time. He
argued that the
prejudice faced by the respondent if condonation was not granted
would far outweigh the prejudice claimed to be
suffered by the
applicants.
[11]
Mr Notshe SC further argued that I erred in finding that the
respondent has
prospects
of success in the proposed action. If I correctly followed his
argument, he contended that the mere fact that the applicants
were
negligent in
failing to properly maintain the road could not in itself clothe them
with liability. He pressed upon the fact that
there was no causal
link between the condition of the road and the ultimate occurrence of
the alleged accident. He contended that
respondent failed to depose
to an affidavit and that the evidence contained in the founding
affidavit of her attorney relating
to how the accident took place is
tantamount to inadmissible hearsay. Mr Zietsman in turn argued in the
main that the evidence
contained in the founding affidavit was not
hearsay. He argued that even if it may be accepted that such evidence
was hearsay,
applicants failed to apply for such evidence to be
struck out and that they are not at liberty to raise this issue in
these proceedings.
[12]
It is common cause that the respondent did not depose to a
confirmatory affidavit and that the course of events that led to
the
accident were narrated by her attorney and father. The deponent to
the founding affidavit, who is the attorney to the respondent,
declares that the facts deposed therein fall within his personal
knowledge and belief unless stated otherwise and are true and
correct. With reference to the particulars of claim, deponent
proceeds to recount the course of events that led to the accident
in
detail. Respondent alleges in her particulars of claim that she lost
control of her vehicle when the left wheels alternatively
the left
front wheel of her vehicle unexpectedly encountered a point where the
tarred verge of the road had broken away and where
there was a
significant difference between the level of the tar and that of the
gravel shoulder, immediately adjacent to the tar.
Applicants, so
respondent alleges, were negligent in failing to properly maintain
the road and failing to ensure that it was reasonably
free from edge
break and dangerous drops between the levels of the tar and the
gravel verge. This, in my view, set out a
prima
facie
case.
[13]
The contents of the
founding affidavit are in my view not hearsay simply because what the
attorney deposed to was not
being
tendered to prove the truth of what was asserted or
to prove the
truth of what was
related to him,
but
merely as to what the respondent’s evidence would be during the
main action. Even if accepted that the version relating
to how the
accident occurred amounts to hearsay, it is trite that
hearsay
evidence by way of affidavit may be admitted were
the
existence of other special circumstances appear to justify their
doing so,
provided the deponent
reveals the source of the information concerned, and avers that he
believes such information to be true and
correct, and furnishes the
ground for such belief. See
Galp v
Tansley NO and Another
1966 (4) SA 555
(C).
[14]
The admission of hearsay evidence is governed by
s 3
of the
Law of
Evidence Amendment Act 45 of 1988
, which gives the court a wide
discretion whether or not to admit hearsay evidence. What a Court has
to consider in determining
whether to accept such evidence amongst
others is the nature of the proceedings at hand and the purpose for
which the evidence
is tendered. As was stated in
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) para [8], the phrase “
if
[the court] is satisfied”
in
s
3(4)
(b)
has
long been recognised as setting a standard which is not proof on a
balance of probability. Rather it is the overall impression
made
on a court which brings a fair mind
to the facts set up by the parties. All that was therefore expected
of the respondent was to
'satisfy' the Court that there is a fair
probability that she has prospects of success in the main action and
not to prove same
on a balance of probabilities.
[15]
Applicants contention that I erred in finding that the applicants
failed to lay any basis as to how they would be prejudiced
and in so
finding I reversed the onus and placed it on the applicants, is in my
view likewise misplaced. Relying on
Madinda
supra,
I concluded at para [19] of my written judgment that
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. I was satisfied that
the applicants’ claim of prejudice
was
not
supported by any facts. I find it apposite to refer to
MEC
for Education, Kwazulu-Natal v Shange
2012 (5) SA 313
(SCA)
where the following was stated at para [22]:
“
First,
the complaint of prejudice raised by the appellant is general
and unspecified in its terms and unrelated to any facts
that indicate
prejudice. Second, the respondent's allegations that the teacher
involved is now the principal of the same school
and that pupils who
were present during the incident, identified by name, are still
available, are unchallenged. The absence of
any prejudice is
therefore illustrated by these facts.”
[16]
In conclusion, the contention that I erred in directing that the
applicants pay the respondent’s costs as she was granted
an
indulgence and costs should not have followed the event, is likewise
not well taken. The Court in
Premier,
Western Cape v Lakay
2012 (2) SA 1
(SCA), held that:
“
Ordinarily,
in applications for condonation for non-observance of court
procedure, a litigant is obliged to seek the indulgence
of the court
whatever the attitude of the other side and for that reason will have
to pay the latter's costs if it does oppose,
unless the opposition
was unreasonable. I doubt that this is the correct approach in
matters such as the present, as an application
for condonation under
the 2002 Act has nothing to do with non-observance of court
procedure, but is for permission to enforce a
right, which permission
may be granted within prescribed statutory parameters; and such an
application is (in terms of s 3(4))
only necessary if the organ of
State relies on a creditor's failure to serve a notice. In the
circumstances there is much to be
said for the view that where an
application for condonation in a case such as the present is opposed,
costs should follow the result.”
[17]
After having revisited my judgment
and having re-evaluated same with the notice of appeal as well as the
arguments submitted herein,
I come to the conclusion that applicant
has no reasonable prospect of success on appeal. I will accordingly
make the following
order:
1.
Leave to appeal is dismissed with costs.
L.B.J.
MOENG, AJ
On
behalf of the applicants: Adv. V.S. Notshe SC
Instructed
by:
State
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. J. Zietsman
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN