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[2016] ZAGPPHC 730
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Mabaso v Mpumalanga Province:Government Department of Public Works,Roads and Transport (7314/2012) [2016] ZAGPPHC 730 (19 August 2016)
REPUBLIC
OF
SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:
7314/12
DATE:
19/8/2016
JOHN
MABASO
................................................................................................
APPLICANT
and
MPUMALANGA
PROVIN
CE
:GOVERNMENT
DEPARTMENT OF PUBLIC WORKS,ROADS AND
TRANSPORT
.
RESPONDENT
APPEAL
-
JUDGMENT
KHUMALO
J
[1]This
is an Application for condonation of the late filing of a Notice in
terms of s 3 (4) (a) of the Institution of Legal Proceedings
against
the Organs of State Act 40 of 2002 ("the Act") by the
Applicant who has instituted an action against the Respondent
for
damages he suffered allegedly in an accident he had when he drove
over a pothole on a road in Mpumalanga.
[2]The
accident occurred on 20 March 2009.
[3]
In an affidavit deposed to by the Applicant's attorney of record, L M
Kobrin ("Krobin"), it is alleged that the related
notice
dated 24 January 2012 was sent by the attorneys to the Respondent by
fax on 27 January 2012, two (2) years and 10 months
after the alleged
accident.
[4]
The delay as articulated by Kobrin was as a result of the following
happenings
[4.1]
the Applicant consulted with Zuma, a candidate attorney at his firm
on 31 May 2011, 2 years and 2 months or 26 months after
the accident,
seeking advice on whether or not he had a claim against the Road
Accident Fund.Applicant told Zuma that he drove
into a pothole and
lost control of the motor vehicle resulting in the accident. He and
the passenger in the vehicle sustained injuries.
[4.2]
Applicant was however unsure if he had a claim as although he
had
not seen
the
OAR
report
concerning the accident, he seemed to have thought that the
SAPS recorded information to the extent that the collision occurred
as a result of the Applicant losing control of the vehicle when he
swerved in an attempt to avoid a collision with a springbok that
emerged from the side of the road and ventured into the path of the
motor vehicle, which report Applicant said was incorrect as
he drove
into a pothole.
[4.3]
Zuma approached him (Krobin), seeking advise as to whether or not
Applicant had a claim. Krobin advised Zuma that there was
no claim
against the Road Accident Fund and that if the accident was caused by
the springbok no claim lays lies against anyone.
He also advised him
that if however indeed the accident was caused by a pothole, the
Applicant has a claim against the authority
charged with the
maintenance of the road. In that case Applicant had an obligation to
make demand within six months of the collision
if such Authority an
organ of state. Incidentally condonation of the late delivery of the
Notice could be sought from a competent
court.
[4.4]
He instructed Zuma to advise Applicant accordingly and that if
Applicant elected to investigate the matter, Zuma or Applicant,
(not
sure who is referred to) should as soon as possible obtain the OAR
report, statements from Applicant and his passenger and
the clinical
and medical records relating to the treatment Applicant received.
Applicant's instructions was for Zuma to investigate
and pursue a
claim against the authority being adamant that the accident occurred
as a result of driving over a pothole on a road
without warning
notices or signs alerting motorists to proceed with caution due to
the existence of potholes
[4.5]
Zuma obtained the relevant documents from the Applicant that included
the OAR report, also confirmation that Applicant's passenger
had
confirmed that the accident occurred as a result of the pothole. Zuma
was then instructed to obtain statements. He (Krobin)
perused the
OAR. It stated that the cause of the collision was the Applicant
swerving to try and avoid colliding with the springbok.
A copy
thereof attached.
[4.6]
He accordingly conducted his own investigation and found that the
Respondent was the Authority charged with the maintenance
of the
particular road. On 24 January 2012 on receipt of the passenger's
statement he prepared the Notice letter to the Respondent
that he
transmitted on 27 January 2012, 8 months after being consulted by the
Applicant and 2 months before prescription. The letter
incorporated a
request that the Respondent indicate whether or not it will be
inclined to condone the Applicant's failure to deliver
the letter of
Notice within six months.
[4.7]
On 7 February 2012, a month before prescription, when there was no
response form Respondent he attended to the issuing of
summons,
served on the Respondent on 29 February 2012.
[5]
It is Krobin's allegation that due to the Respondent's apparent
decline in its Special Plea, to waive the Applicant's failure
to make
a demand within six months of the accident, it became necessary for
it to apply for condonation.
[6]
He contends further that notwithstanding the delay the Applicant's
action has not been extinguished by prescription and the
circumstances he has described amount to a reasonable explanation for
the Applicant not to have given the required Notice in terms
of the
Act, showing good cause as is required by s 4 (b) (ii). Further that
no prejudice can be claimed by the Respondent, alleging
to have
attached a copy of the OAR and also undertaking to furnish the
Respondent with further information as per its request for
further
particulars that it reasonably requires to prepare for trial.
Respondent's
Answering Affidavit
[7]
Respondent opposes the granting of condonation to the Applicant and
make the following main allegation, that:
[7.1]
Respondent only became aware of the accident when a summons was
received on April 2012 by its Principal Legal Officer, Gustav
Ludwick
("Ludwick"), who is the deponent to its answering
affidavit. The Respondent was never informed of the alleged
accident
prior thereto.
[7.2]
The purported Notice sent allegedly by fax on 27 July 2012 was never
received by the Respondent as the fax number on the said
notice does
not exist. The fax number on the attached transmission receipt is
different from the one on the notice and unknown
to it. Failing this,
it also never received such Notice either by hand or registered mail.
[7.3]
It therefore has never been afforded an opportunity to investigate
the matter.
[7.4]
The summons that allegedly followed the notice state that the
accident occurred 500 kilometers from Standerton between Evander
and
Standerton, whilst the two towns are 66.8 Kilometers apart. The
statement was consistently repeated by the Applicant in its
summons
as well as other documents, being made at that late stage, it made it
extremely difficult for Respondent to investigate
the accident.
[7.5]
The Applicant has also failed to attach the OAR report to the
Founding affidavit as alleged.
[7.5]
The aforesaid failure by the Applicant has caused it and is still
causing it extreme and unreasonable prejudice.
[7.6]
The Applicant fails to give an explanation for the long delay of 26
months before it instructed its attorneys and also the
long delay
taken by the attorneys after the instruction to allegedly send the
Notice letter, albeit the vague explanation of having
consulted,
given advice and investigated for 8 months. There is no confirmatory
affidavit from the Applicant's passenger. As a
result the Respondent
was not afforded an opportunity to investigate the accident prior to
engaging in legal proceedings.
[7.7]
Furthermore at the date of the alleged notice it was already
impossible for the Respondent to investigate and establish where
the
accident had allegedly occurred and also to verify the correctness of
Applicant's allegations, as roads in that area are constantly
sealed
and repaired,
urgency being of essence.
[8]
Applicant then filed what it called an Answering affidavit, which is
presumably a Replying Affidavit which was opposed by the
Respondent
who then filed a notice to strike out that was supposedly heard
simultaneously with the Condonation Application. The
Application to
strike out refers to paragraphs that are not contained in the
Replying Affidavit. Counsels however indicated in
argument that the
contention is based on the three documents that are attached to the
Affidavit. I was therefore inclined not to
refuse the Application due
to that discrepancy. The decision would not prejudice any of the
parties.
[9]
In that affidavit Krobin persists with the description of the
accident that it occurred 500 kilometers between Standerton and
Evander and insists that it is the most accurate description given by
the police, Applicant and his witness. He further argues
that he is
aware that in preparation for trial it will be necessary to visit the
scene and prepared to conduct an inspection at
any time then and
visit the scene with the Respondent for the Applicant to point out
the place where the accident occurred. He
argues that the Respondent
will then be able to investigate and inspect its records for
maintenance and repair work done during
that period.
[10]
It is only in that application that the Applicant attaches the OAR
report and the statement by the Applicant's witness. He
argues that
the affidavit was deposed to on 17 January 2012 and only then could
he ascertain the Authority responsible for the
maintenance of the
road thus preparing the Notice letter and sending it on 27 January
2012.
LEGAL
FRAMEWORK
[11]
Section 3 (4) (a) provides that if an organ of state relies on a
creditor's failure to serve a notice in terms of subsection
(2) (),
the creditor may apply to a court having jurisdiction for condonation
of such failure.
[12]
Section 3 (2) sets out the following factors that the court has to
consider to determine whether or not to grant condonation:
(a)
that the debt has not been extinguished by prescription;
(b)
good cause exists for the failure by the creditor; ie to serve the
statutory notice that complies with the prescripts of s3(2)
(b); and
©
the organ of state was not unreasonably prejudiced.
[13]
On hearing the matter it was conceded by the Respondent that although
the issue of prescription was raised in its answering
affidavit, it
does not arise, the summons having been served a month before the
date of prescription. The factors that remained
to be determined was
whether good cause exists and prejudice to the Respondent.
[14]
The Applicant has taken more than two years to approach attorneys
with his claim without proffering any explanation as to why
he could
or did not do that earlier. According to the attorney, obtaining a
statement from the Applicant's witness, the OAR report
and
investigation which he left to his candidate attorney also took long
causing a further delay of 8 months. It is of significance
that the
Accident Report indicates that it was received from Barlow World
Trichard, which is the employment of the Applicant on
28 June 2011,
whilst the consultation took place on May 2011. It is therefore
evident that a month after the consultation the attorneys
were in
possession of the OAR report. Neither the Applicant nor his attorney
explains why the Applicant's witness' statement is
only obtained six
months thereafter. They also do not explain what the investigation
that took such a long time entailed, as it
is evident that it
excluded the OAR report which was already in their possession a month
after the consultation.
[15]
The Applicant fails to provide an explanation for the period of his
delay, whilst Krobin provides a scanty account of the further
delay
in his office. It was pointed out that an Applicant for condonation
has to set out fully the explanation for the delay, covering
the
whole entire period of the delay and must be reasonable. The court
must be able to assess his motives and conduct. Which is
what the
Applicant has failed to do and therefore his motives unascertainable.
[16]
The fundamental imperatives of the Notice as contemplated in s 3 of
the Act are clearly elucidated in Minister of Agriculture
and Land
Affairs v C J Rance (Pty) Ltd (293/09) [2010] ZASCA27 (25March 2010)
where the following was stated:
"The
conventional explanation for demanding prior notification of
intention to sue organs of State, is 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 endeavor
to
settle them, (Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(cc) para
9). From time to time there have been judicial pronouncements about
how such provisions restrict the rights of its potential
litigants.
However, their legitimacy nd constitutionality is not in issue."
[16]
In casu, the urgency of Respondent having to be notified in time is
very clear and comprehensible. It was not able to conduct
an
investigation in time to be able to responsibly make decisions with
regard to the validity of the Applicant's claim or to decide
what to
do with the claim. It is therefore obvious that Respondent was
severely prejudiced. The manner in which the claim was submitted
post
the alleged Notice in its summons and the attitude of Applicant's
attorney that the Respondent can wait until preparation
of trial when
they will conduct an inspection in loco and that is when the
Respondent will see for itself where the accident occurred
was
unaccommodati ng and exacerbated the situation. lit contradicts the
fundamental imperative of the section 3 as elucidated in
Rance.
In
Mohlomi it was pointed out that 'such rules prevent procrastination
and those harmful consequences of it and thus serve a purpose
to
which no exception in principle can cogently be taken.'
[17]
The Respondent as evidently pointed out did also not receive the
purported notice and even though the Applicant's Replying
affidavit
is silent on the challenge, Krobin however contends that the
transmission by fax is recognized as valid transmission
of demand as
envisaged in section 3(2) (a). Conversely Section 4 (1) of the Act
requires such a notice to be served on the organ
by delivering it by
hand or by sending it by certified mail or (subject to s 4 (2)) by
sending it by electronic mail or transmitting
it by facsimile.
[18]
Section 4 (2) clearly states as pointed out by Mr Mills, Respondent's
Counsel that, if a notice has been sent by fax, the creditor
must
take all reasonable steps to make sure that the notice has been
received by the officer or person to whom it was sent or transmitted,
and within 7 (seven) days after the date upon which the notice was
sent or transmitted, deliver by hand or send by certified mail
a
certified copy of that notice to the relevant officer or person which
must be accompanied by an affidavit by the creditor or
the person who
transmitted the notice indicating,
inter
a/ia,
the date on which and the time and fax number to which the notice
was sent or transmitted, containing proof that it was sent or
transmitted and setting out the steps taken to ensure that the notice
has been received by the officer, and also indicating whether
confirmation of the receipt of notice has been obtained.
[19]
For all these reasons, concerning the partly unexplainable, partly
insufficiently explained delay, failure to comply with the
section
when sending the alleged Notice, the incorrect _information conveyed
and the withholding of documents relevant to the claim
just attests
to the matter being one of those where the prejudice suffered by the
Respondent is unassailable. Not only does the
conduct of the
Applicant amounts to unreasonable prejudice to the Respondent but it
also fails to comply with the prescripts of
s 3 (2) (b) and 4 (2).
[20]
Even though it has been indicated that the prospects of success also
play a significant role in deciding whether good cause
exists. For
the court to be able to make such determination the Applicant must
deal with the merits completely and candidly. In
dealing with the
merits in the Founding Affidavit Krobin has not explained the
apparent discrepancy between the OAR report and
Applicant's statement
regarding how the accident occurred and also does not mention who
made the statement to the police except
stating that the discrepant
information was recorded by the police and that it was only after the
witness has furnished a statement
that he could ascertain what had
happened, obviously dealing scantily with the details. He also failed
to attach the OAR report,
the statement by the Applicant and his
witness statement. Only with the Replying affidavit is the OAR and
other crucial documents
are attached and an allegation made for the
first time that the Applicant was unconscious after the accident. The
following was
on 29 March 2009 recorded in the OAR:
"the
driver
tried
to
avoid
a
springbok animal
that
was
crossing
from
the
left
to the
right
hand
side
of
the
road
when
the
driver
lost
control
and
overturned.
The driver
and
the
passenger sustained minor Injuries."
(my
emphasis)
[21]The
OAR proving to be such a crucial document for the Respondent's
investigation which Applicant had in its possession since
June 2011,
a witness statement obtained in January 2012 that also indicates
otherwise are for the first time put forward in a Replying
Affidavit.
Also what surfaces added to the documents is an undated statement
where the Applicant for the first time alleges to
have been
unconscious. Of note is that the Applicant's witness does not say
anything about Applicant being unconscious nor do the
police who were
at the scene. The police report actually says the driver and the
passenger sustained minor injuries. Applicant
on the other hand gives
even a more bizarre account of what happened, stating that:
"The
accident happened 50
Km
before
we
could reach our destination. The
car started
flying
in
the
air
and
rolled
on
the
ground.
I
then
came
out
of
the
car
and saw
Springboks
which
I
believed
caused
the
accident.
The
following
we
went
to
fetch thebakkle
we
then
realized twopotholes caused
theaccident.
"(my emphasis)
[22]
As a result the court is not placed in a position to be able to make
a proper assessment on the merits of the Applicant's intended
action.
So far the prospects of success are indistinct. According to
Rance
an Applicant acts at his own peril when a court is left in the
dark on the merits of the intended action and a paucity of detail
on
the merits will exacerbate matters for a creditor who has failed to
fully explain the cause for the delay.
[23]
The information that was left out and unexplained exhibit such a
crucial discrepancy and more the reason why it was important
that the
Respondent is notified of the claim in time so as to conduct its
investigation and obtain statements from the police.
The Respondent
has eloquently referred to the frustration it experienced due to the
scarce and confusing information that followed
the failure to comply
with s 3 (2)
(a)
Notice causing it unreasonable prejudice.
[24]
The Applicant has therefore failed to establish the good cause
required and with the Respondent successfully showing the prejudice
it suffered as a result of Applicant's failure to comply, his delay
and conduct.
[25]
Under the circumstances the following order is made:
[25.1]
The Application for condonation in accordance with prayer 1and 2 of
the Notice of Motion is dismissed with costs, including
costs for
senior Counsel.
[25.2]The
Respondent's Application for striking out the Replying affidavit is
dismissed with no order as to costs.
_________________
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
For
the Applicant:
Instructed
by:
.......................................
BOVE
ATTORNEYS
…
........................................................
Tel: 011 336-9581/2/3
…
.........................................................
Ref:
L Kobrin
For
the Respondent:
….......................
D
MILLS SC
Instructed
by:
......................................
THE
STATE ATTORNEY
Tel:
......................................................
012
309 1500
Ref:
….............................................................................................................
D
Olwage