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[2016] ZAFSHC 124
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Potgieter v MEC for Police, Roads and Transport: Free State (3859/2015) [2016] ZAFSHC 124 (11 August 2016)
IN
DIE HOOGGEREGSHOF VAN SUID-AFRIKA
VRYSTAATSE
AFDELING, BLOEMFONTEIN
Case
No: 3859/2015
In
the case between:
O
C POTGIETER
Applicant
and
MEC
FOR POLICE, ROADS & TRANSPORT:
FREE
STATE
Respondent
JUDGMENT
BY
:
LEKALE, J
HEARD
ON:
4
AUGUST 2016
DELIVERED
ON
:
11 AUGUST 2016
BACKGROUND
AND INTRODUCTION
[1]
On 7 September 2012 the applicant, who was a self-employed architect
/ technologist, allegedly sustained bodily injuries when
he allegedly
lost control over a motor vehicle he was driving along the R82 road
between Kroonstad and Koppies as a result of potholes
in the road.
He received involved medical attention and successfully lodged a
disability claim with his insurers during December
2012.
[2]
Some 2 years and 8 months later on the 26 May 2015 the applicant,
through his attorneys of record, notified the respondent in
terms of
section 3(1) of Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002 (the “Act”)
of his
intention to institute action against him for recovery of damages
arising out of the alleged accident. Summons was,
thereafter,
issued on 18 August 2015 and within 3 years after the alleged cause
of action arose alleging that the respondent breached
his legal duty
towards the applicant by,
inter
alia
,
failing to ensure the repair of all potentially dangerous rutting
and/or potholes on the road surface.
[3]
The respondent resists the action and on 5 November 2015 filed a
special plea to the effect that the notice in question was
defective
in that it was not served timeously. On 8 February 2016 the
respondent, through the State Attorney, responded to
the applicant’s
request for condonation in his letter of 17 November 2015 and pointed
out that same could not be agreed to.
[4]
On 4 May 2016 the applicant filed the instant application moving for
condonation of the late delivery of the relevant notice
together with
costs in the event of opposition by the respondent. The
respondent, on his part, opposes the motion on the
ground that there
exists no good cause for condonation.
ISSUES
IN DISPUTE
[5]
The parties are at variance on whether or not good cause exists for
condonation with specific reference to the following:
(a)
Whether
or not the delay involved has been explained adequately full with the
respondent contending that the delay involved in launching
the
application after the special plea was filed and after the applicant
was advised of the respondent’s attitude towards
his request
for condonation has not been explained;
(b)
Whether
or not the applicant’s claim enjoys any prospects of success
with Mr Mene for the respondent maintaining that the
applicant’s
refusal to deal with the issue in the present application is fatal;
(c)
Whether
or not the reason advanced by the applicant for pre-notification
delay is acceptable and satisfactory with the respondent
holding that
same is contradictory, flimsy and renders the delay inexcusable;
(d)
Whether
or not the respondent would suffer prejudice if condonation is
granted with the applicant contending that the fact that
the
respondent deals with the merits of the action in its opposition of
the application is indicative of his ability to deal with
the matter
without any prejudice in his defence.
DEPOSITIONS
AND CONTENTIONS FOR THE APPICANT
[6]
The applicant attributes the delay to the fact that after the
accident he was not aware that he had a cause of action against
the
respondent and only acquired the relevant knowledge after he
consulted his attorneys of record following an advertisement on
the
radio. He, further, cites lack of funds on his part
as the reason for not seeking legal advice earlier and
points out
that he only consulted his attorneys after learning that they take
instructions on contingency fee basis.
[7]
In argument on papers and before the court Mr Du Preez submits that
the applicant furnished proper reasons constituting good
cause for
condonation. He, further, contends that the respondent has not been
unreasonably prejudiced by the delay involved insofar
as he has not
shown any detrimental prejudice in his ability to properly
investigate the applicant’s cause of action. In
conclusion he
reiterates that the post-notification delay in applying for
condonation is not prejudicial to the respondent and
is, as such, not
necessarily fatal to the present application.
DEPOSITIONS
AND CONTENTIONS FOR THE RESPONDENT
[8]
The respondent’s Director of Legal Services deposes at length
to,
inter
alia,
the effect that the respondent has been severely prejudiced in his
investigation of the alleged accident because of the road works,
repairs and other developments that took place on the relevant road
between the date of the alleged accident and the date of the
relevant
notice. In his view it is simply impossible to verify the
alleged accident after the inordinate delay involved in
bringing same
to the respondent’s attention.
[9]
On the papers and in argument before the court Mr Mene contends,
inter
alia
,
that the delay of 6 months after the special plea was served and/or
almost three months after an objection was raised against
condonation
remains unexplained and creates the impression that the applicant is
lackadaisical and uncaring in his approach to
the matter. He,
further, submits that the applicant is self-contradictory insofar as
in the founding affidavit he attributes
the alleged accident to
potholes while in his affidavit annexed thereto he alleges that he
swerved away from potholes and the car
went into a
skid on the oil / diesel spillage.
APPLICABLE
LEGAL PRINCIPLES
[10]
Section 3 of the Act proscribes the institution of legal proceedings
against organs of state such as the respondent without
either a
written notice given within 6 months from the date on which the cause
of action arose or written consent to the institution
of such legal
proceedings without such notice.
[11]
Failure to give the prescribed notice may be condoned by the court on
application if the relevant organ of state withholds
consent and if
the court is satisfied that:
(a)
the
relevant claim has not prescribed;
(b)
good
cause exists for the failure to comply; and
(c)
the
relevant organ of state was not unreasonably prejudiced by the
failure. (See Section 3(4) (a) and (b) of the Act)
[12]
In the context of the Act and for the purposes of condonation
“
[t]he
phrase ‘if [the court] is satisfied’ in S3(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.”
(See
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at para
[8]
.)
[13]
For the purposes of condonation the court has a wide discretion and
“…
'good
cause’ may include a number of factors that are entirely
dependent on the facts of each case; and that the prospects
of
success of the intended claim play a significant role.”
(See
MEC
for Education, KwaZulu Natal v Shange
2012 (5) SA 313
(SCA) at para [15].)
[14]
It is incumbent upon the applicant for condonation to
“
furnish
an explanation of his default sufficiently full to enable the court
to understand how it really came about and assess his
conduct and
motives
.”
(See
Premium,
Western Cape v Lakay
2012 (2) SA 1
(SCA) para [17].)
[15]
Post-notification delay exacerbates the matter insofar as
“
condonation
must be applied for as soon as the party concerned realises that it
is required. The onus, to satisfy the court
that all the
requirements under s4 (b) of the Act have been met, is on an
applicant, although a court would be hesitant ‘to
assume
prejudice for which [a] respondent itself does not lay a basis’
.”
(See
Minister
of Agriculture and Land Affairs v C J Rance (Pty) Ltd
2010 (4) SA 109
(SCA) para [39].)
[16]
Prescribed time periods in litigation seek to obviate inordinate
delays which compromise the interests of justice insofar as
time is
the worst enemy of human memory. The notice prescribed by
section 3 of the Act,
inter
alia
,
“
allows
the organ of
state time to investigate the complaint and [to] possibly agree to
payment or settlement without incurring the costs
of litigation.”
(See
Francis
Ralentsoe Moloi v Minister of Safety and Security and Others,
case number 3821/2013, unreported judgment of Free State High
Court delivered on 12 June 2014 and
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC).)
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
[17]
In law the applicant was obliged to serve the relevant notice on the
respondent not later than 6 March 2013 but same was only
served some
26 months later on the 26 May 2015. The delay involved was
indeed inordinate and called for sufficiently
full
explanation on the part of the applicant. This pre-notification
delay has, in my view, been fully explained but the
same cannot be
said about the post-notification or pre-condonation application delay
which simply cries out for explanation and
reflects negatively on the
applicant’s attitude towards the matter regard being had to the
fact that he was legally represented
at the relevant time.
[18]
It is correct that the applicant was obliged to apply for condonation
as soon as he became aware of the respondent’s
attitude with
regard to condonation regard being had to the special plea and the
communication between the office of the state
attorney, acting for
the respondent, and the applicant’s attorneys. The delay
in question was not reasonable insofar
as it stretched from 5
November 2015 to and including 3 May 2016. The reason for the
delay in question is an enigma to the
court.
[19]
The reason advanced for the pre-notification delay is, in my
judgment, not satisfactory and acceptable regard being had to
the
fact that the applicant was a professional architect/technologist
and, as such, educated although not in the legal field.
It is
not apparent from the papers that the applicant did anything to
secure the funds he needed to secure legal advice which he
was
clearly aware was necessary in order to protect his rights. It
is correct, as submitted by Mr Mene, that the applicant
could have
approached Legal Aid SA for assistance. Once again the reason
why he did nothing to secure the necessary and/or
assistance
prior to May 2015 remains a mystery.
[20]
The applicant expressly refrained from dealing with the prospects of
success of his action against the respondent. I
only have the
respondent’s views on the issue which are based on the
applicant’s own depositions with regard to the
cause of the
accident. It appears
ex
facie
the applicant’s deposition that the cause of the accident was
stricto
senso
not the potholes but the oil/diesel spillage on the road
which caused the applicant to lose control over the
vehicle. To the aforegoing extent and without any further input from
the applicant his claim
prima
facie
has remote, if any, prospects of success.
[21]
The applicant insists that the respondent has not shown any
detrimental prejudice to his ability to properly investigate the
cause of action. The onus is, however, on the applicant to show
that all the requirements set out in the Act for condonation
have
been met. The respondent, as the organ of state concerned, is
only saddled with evidentiary burden to lay the basis
for the court
to infer presence of unreasonable prejudice on his part. (See
Minister
of Agriculture and Land Affairs v C J Rance (Pty) Ltd
(
supra
))
[22]
I am satisfied from the opposing papers that the respondent has done
more than lay the basis for the relevant inference to
be drawn.
He has, in effect, demonstrated how he would be forced to
accept the applicant’s
ipse
dixit
because of the delay involved which effectively deprived him of the
opportunity to investigate the matter properly in order
to,
inter
alia,
test the veracity of the claim.
[23]
When all is said and done I am not persuaded that good cause exists
for condonation in the instant matter.
COSTS
[24]
There exists no cause to deviate from the general practice with
regard to costs. Costs, therefore, follow the event in
the
instant matter.
ORDER
[25]
In consequence the application is dismissed with costs.
_______________
L.
J.
LEKALE, J
On
behalf of the applicant: Adv. W.R. du Preez
Instructed
by:
Du
Plooy Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv.B.S. Mene
Instructed
by:
State
Attorney
BLOEMFONTEIN
/eb