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[2015] ZAFSHC 7
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Van Der Merwe v MEC Public Roads and Transport: Free State Province and Another (4617/2010) [2015] ZAFSHC 7 (29 January 2015)
FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 4617/2010
In
the matter between:
JJ
VAN DER
MERWE
...........................................................................................
Applicant
and
MEC
PUBLIC ROADS AND TRANSPORT:
…..........................................
1
st
Respondent
FREE
STATE PROVINCE
PREMIER
OF THE FREE
STATE
..............................................................
2
nd
Respondent
JUDGEMENT:
MOENG, AJ
HEARD
ON: 4 DECEMBER 2014
DELIVERED
ON: 29 JANUARY 2015
[1]
Applicant seeks condonation in terms of section 3(4) (a) and (b) of
the Institution of Legal Proceedings against Certain Organs
of State
Act 40 of 2002 (“the Act”) for her failure to comply with
the provisions of section 3(2) (a) of the Act. The
application is
opposed on the basis that the applicant unduly delayed instituting
the condonation application and that the application
in itself has no
merit.
[2]
On 9 September 2010, applicant issued summons against the respondents
claiming damages in the amount of R 7 091 179.87 for personal
injuries (primary quadriplegia) she suffered arising from a motor
vehicle accident that occurred on 27 July 2009. Applicant alleges
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. Respondent, so applicant alleges, was 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.
[3]
A notice in terms of section 3 of the Act was
hand delivered at the offices of the second respondent on 2 June
2010, approximately
eleven months after the accident. This notice was
therefore served roughly four months after the expiry of the six
month period
prescribed by section 3(2)(a) of the Act. The
respondents assert in a special plea filed on 10 February 2011that
applicant failed
to comply with the provisions of the Act in that she
failed to serve the notice within six months of the date of the
incident.
On 20 September 2012, applicant’s attorney addressed
a letter to the respondents’ attorney requesting him to
reconsider
the special plea but this request was turned down on 13
December 2012. This stance compelled applicant to lodge the current
application
on 16 October 2014.
[4]
The reasons for the delay in serving the section 3(2)(a) notice were
narrated by applicant’s attorney of record and confirmed
by
applicant’s father. As indicated earlier, applicant was
involved in an accident which rendered her quadriplegic
on 27 July
2009 when the vehicle she was driving overturned on the provincial
road between Dealesville and Bloemfontein. She was
admitted to the
Rosepark hospital in Bloemfontein on the same day and was taken to
theatre as her spine showed a fracture dislocation.
She spent some
time in the intensive care unit due to respiratory complications and
numerous bronchoscopies were performed. On
29 September 2009, she was
transferred to Pasteur hospital for active rehabilitation. In her
report compiled on 1 October 2009,
Dr M Van Zyl reports that the
applicant had an impaired lung function and received chest
physiotherapy twice daily. She had no
functional independence and was
fully dependant on the assistance of a helper. She was very stressed
and emotional about her condition.
She still required intensive
rehabilitation and was discharged from hospital in the beginning of
February 2010.
[5]
The applicant’s father consulted the attorney of record on 3
September 2009 to assist him with a possible claim against
the
respondents. He had however already visited the accident scene
on 28 July, a day after the accident, and had taken photographs
of
the scene. Attached to the founding affidavit, is also an
Accident Report Form compiled by Inspector GJ Van Eeden from
the SAPS
Dealesville depicting the portion of the road were the accident
occurred. Shortly after the first consultation on 3 September,
applicant’s father and the attorney visited the scene but the
particular portion of the road had already been repaired. Applicant’s
father declares that he presented the photos of the scene a few weeks
after the accident to a certain Mr Frewn who was attached
to the Free
State Provincial Legislature. Mr Frewn had promised to inform the
relevant officers in the first respondent’s
office about the
condition of the road. A few weeks thereafter, towards the beginning
of September, applicant’s father received
a call from the first
respondent’s office advising him that the particular section of
the road where the incident took place
will be repaired.
[6]
The attorney thereafter engaged with a number of people in an attempt
to investigate a possible claim against the respondents
and only
managed to consult with the applicant on 28 January 2010 at Pasteur
hospital and it is only at this stage that she managed
to relate the
incident to him. This consultation was delayed due to the
medical condition of the applicant. Between
the period 28
January and 2 June 2010 when the section 3 (2)(a) notice was
delivered, different experts were consulted to compile
reports
relating to the medical condition of the applicant and the condition
of the motor vehicle.
[7]
In response, deponent to respondents’ affidavit contends that
applicant has unduly delayed in instituting the current
proceedings
since she was informed on 13 December 2012 that respondents were not
prepared to condone her failure to comply with
the provisions of the
Act. He further declares that the explanation for the default is
extremely vague and that the respondents’
have been extremely
prejudiced by applicant’s failure to give them notice timeously
since the evidence regarding the cause
of the accident has been
extremely compromised. I should however pause to state that in their
plea, respondents contend that steps
were always taken to ensure that
routine inspections were conducted to ensure that the road was in a
good condition and that the
road shoulder was in a degree 2 condition
as per the departmental maintenance quality standards. The shoulder
of the road was therefore
in a reasonably good condition.
[8]
The
issue in this case is whether
good cause exists to condone the applicant’s failure to comply
with the relevant statutory provision
and whether applicant’s
post notification delay of approximately 22 months in bringing the
application for condonation disentitles
her to the relief sought.
[9]
Section 3(1) precludes anyone from instituting legal proceedings
against an organ of state unless such claimant had given written
notice of his intention to do so. Such notice has to, in terms
of subsection (2), be given within six months from the date
on which
the alleged cause of action arose. The purpose of this provision is
to afford the organ of state the opportunity to investigate
the basis
of the intended claim at an early stage. In
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA
124
(CC)
at para
[9]
, Didcott J summarises
the purpose of such a notice as follows:
“
The
conventional explanation for demanding prior notification of any
intention to sue such an organ of government 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
endeavour to settle them.”
He
proceeded at para [11]:
“
Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays
in litigating damage the interests of justice. They protract the
disputes over the rights and obligations sought to be enforced,
prolonging the uncertainty of all concerned about their affairs.
Nor in the end is it always possible to adjudicate satisfactorily
on
cases that have gone stale. By then witnesses may no longer be
available to testify. The memories of ones whose testimony can
still
be obtained may have faded and become unreliable. Documentary
evidence may have disappeared. Such rules prevent procrastination
and
those harmful consequences of it. They thus serve a purpose to which
no exception in principle can cogently be taken.”
Lewis
JA explains the position as follows in
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009
(1) SA 457
(SCA)
:
“
The
Act is meant not only to bring consistency to procedural requirements
for litigating against organs of State but also, it is
clear, to
render them compliant with the Constitution. The way in which it
seeks to achieve a procedure that is not arbitrary and
that operates
efficiently and fairly both for a plaintiff and an organ of State is
to give a court the power to condone a
plaintiff's
non-compliance with procedural requirements in certain circumstances.
Thus access to courts is facilitated, while at
the same time
procedures against large governmental organisations that need to keep
their affairs in order are regulated.”
[10]
The applicant has admittedly given such notice
approximately eleven months after the accident and roughly four
months after the expiry of the six month period prescribed by
subsection (2)(a). Her default and respondents’ subsequent
reliance on her failure to serve the notice timeously, prompted
her
to file the current application in terms of subsection 4(a)
.
There are two
main elements at play in s 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. See
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA).
[11]
Such application may be granted in terms of subsection 4
(b),
provided the court is satisfied: (i) that the alleged debt has not
been extinguished by prescription; (ii) that good cause exists
for
the applicant’s failure to comply; and (iii) that the
respondent was not unreasonably prejudiced by the failure. The
approach I should follow is succinctly stated by Heher JA in
Madinda
supra
at
para [8],
that the
phrase 'if [the court] is satisfied' in s 3(4)(b) is setting a
standard which is not proof on a balance of probability,
but it is
rather the overall impression made on a court which brings a fair
mind to the facts set up by the parties.
[12]
I will now proceed to examine the provisions of subsection 4(b) in
detail to determine whether applicant made out a case. The
debt has
undeniably not prescribed since the cause of action allegedly arose
on
27 July 2009 and
summons was served on 9 September 2010. Action was therefore
instituted within the
extinctive
prescription period of 3 years as provided for by the
Prescription
Act 68 of 1969
.
[13]
The second requirement necessitates the applicant to demonstrate that
good cause exists for her failure to comply with the
statutory notice
period. These are
factors
which bear on the fairness of granting the relief as between the
parties and affecting the proper administration of justice.
Such
factors include the 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 by other
persons or parties to the delay and the applicant's responsibility
therefor. See
Madinda
supra
at para [10].
[14]
One should also not lose sight of the fact that the delay in bringing
an application for condonation, which relates to the
period after the
notice was given,
will
ordinarily not fall within the ambit of
section 3.
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'. See
Madinda
supra
at para [14].
[15]
Save to state that the application in itself has no merit,
respondents did not contend that applicant has no prospects of
succeeding in her claim. The allegations made in the particulars of
claim and the founding affidavit are that applicant
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. The condition of
the road, applicant avers, was caused by respondents’
failure
to properly maintain same in accordance with the required standards.
To these critical
allegations, all that respondents’ state in their opposing
affidavit is that they do not admit that these
allegations are true
and correct. These averments were therefore met by a bare denial and
did not set up a genuine dispute. In
my view, a
prima
facie
case
was raised which triggered
applicant’s
fundamental right to have her evidence evaluated as against the
opposing testimony of the respondents.
[16]
As to the reasons for the delay in delivering the notice, it is
contended on behalf of applicant by her attorney and the supporting
medical evidence that she was involved in an accident on
27
July 2009. She was admitted to hospital on the same day. She spent
some time in the intensive care unit due to respiratory complications
and had an impaired lung function. She had to receive chest
physiotherapy twice daily and had no functional independence. She was
very stressed and emotional about her condition. She required
intensive rehabilitation and was discharged from hospital in the
beginning of February 2010 after the statutory notification period
had already expired. This accident rendered her quadriplegic.
It is inconceivable, based on this course of events, that it
can be argued that applicant could have consulted and instructed
an
attorney to institute an action before expiry of the notice period.
[17]
The respondents’ argument that the explanation for the default
is extremely vague since no medical evidence was tendered
is not only
factually incorrect but is also misplaced. It was argued that
applicant failed to make out a case in the founding papers
but
attempted to do so in reply. This contention however fails to
recognise the unrefuted averments in the founding affidavit
that
after the collision, applicant was admitted to hospital in a critical
state and was only discharged in February. All
that
respondents’ did was to put applicant to the proof of these
allegations, hence corroborative medical evidence was provided.
[18]
There was always an intention, albeit by the applicant’s father
the day after the accident and later by the applicant
after the first
consultation with the attorney, to institute action against the
respondents’. This is fortified by the steps
that were taken to
obtain various expert reports to support applicant’s case. The
sufficiency of
the explanation offered, is in my view indicative of the bona fides
of the applicant. The fact that the notice was
not delivered before
midnight 27 January 2010 cannot be attributed to the applicant. She
was bedridden in hospital. I am satisfied
that the
prospects of success and the explanation for the
initial delay both favour
the applicant.
Good cause therefore exists for her failure to comply
.
[19]
The next requirement relates to whether
the
respondent was unreasonably prejudiced by the failure to serve the
notice timeously. In
Madinda
supra
,
Heher J held at para [21] that this requirement
calls
for a common sense analysis of the facts, bearing in mind that the
grounds of prejudice often lies peculiarly within the knowledge
of
the respondent. 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.
[20]
The essence of applicant’s case is based on the premise that
the respondents’
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.
Respondents’ in turn state 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.
This averment was however not supported by any facts. In contrast, it
is stated in the founding affidavit that an officer in the
second
respondent’s office called the applicant’s father and
indicated that the road would be repaired. This was followed
by the
repair of the road roughly two months after the accident. To this
critical averment, all that respondents’ declare
in their
opposing affidavit is that they have no knowledge of the allegation
and they put applicant to the proof thereof. Whether
this road was
repaired or not fell within the knowledge of the respondents’
and they could not put up with such a vague denial
of knowledge.
[20]
As correctly pointed out by counsel for applicant, respondents
contended in their plea that steps were always taken to ensure
that
routine inspections were conducted to ensure that the road was in a
good condition and that the road shoulder was in a degree
2 condition
as per the departmental maintenance quality standards. The shoulder
of the road was therefore in their view in a reasonably
good
condition. Based on this allegation, I cannot see how the respondents
can claim that evidence was extremely compromised. If
one accepts
that the road was indeed repaired after two months of the accident,
then the evidence could have been tampered with
even if the required
notice was given within 6 months. The inescapable conclusion is that
respondents are attempting to craft a
non-existent prejudice.
[21]
Based on the routine maintenance that respondents admittedly
conducted on the said road and their failure to negate the averment
that they repaired the specific portion of the road two months after
the accident, as well as their positive averment that the
road was in
a reasonable good condition, I am satisfied that
the
respondents were not unreasonably prejudiced by the failure. This is
more so since respondents failed to lay any basis as to
how they
would be prejudiced and how
evidence
relating to the accident was extremely compromised
.
One would have expected respondents to indicate whether there are any
records for the routine maintenance that was carried out
on the road,
when such maintenance was done and if the road was repaired, what the
condition thereof was prior to the repairs.
It was not sufficient to
vaguely refer to prejudice without any factual support thereof.
[22]
I am
satisfied
that all three requirements of
section 3(4)
(b)
(i),
(ii) and (iii) were established.
[23]
The final issue relates to whether the post notification delay in
bringing the application for condonation should disentitle
applicant
to the relief sought despite applicant having satisfied the
provisions of
section 3(4)(b)
.
The explanation offered by applicant’s attorney is that on
receipt of the special plea, from his experience, he verily believed
that the issue will be resolved in the form of consent to condonation
by the respondents. A letter dated 20 September 2012
was
directed to the State Attorney, inviting him to condone the late
delivery of the notice. He however refused to accede to this
request
on 13 December 2012. Applicant’s attorney concedes that
upon receipt of this letter, he ought to have appreciated
the need to
bring this application within a reasonable time. He was however
confident that he would be able to persuade the State
Attorney to
change his stance. This delay, he contends, was solely caused
by him and not by the applicant. All that respondents
assert in
relation to these averments is that applicant did not satisfactorily
explain the delay. No factors are stated why the
self-confessed
remissness of the attorney should be attributed to the applicant.
[24]
Condonation must be applied for as soon as the party concerned
realises that it is required. See
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010 (4) SA 109
(SCA) at para [39]. Applicant’s
attorney admittedly caused this delay. The question is whether his
neglect should be imputed
on the applicant and whether she should
suffer for the
negligence of her attorney.
It is
generally accepted that
there
is a limit beyond which a litigant cannot escape the results of his
attorney's lack of diligence.
This
is so as the attorney is the representative whom the litigant has
chosen for himself. Whether such blame can be attributed
to the
applicant will depend on the unique circumstances of each case.
A certain degree of negligence will debar the
client and another degree will not.
[25]
The circumstances
in casu
are that the attorney bona fide believed that the State Attorney
would condone his failure. In his own words, he declares that
he was
“
in retrospect foolishly confident
that he would be able to persuade the state attorney to abandon the
special plea”
.
It
can be accepted that
a
layman cannot sit passively by, if there is a protracted delay,
without so much as directing any reminder or enquiry to his attorney.
The attorney was however not inactive during this period to arouse
anxiety from the applicant as to why the matter does not reach
finality. Trial dates where arranged and the matter was set down for
trial on 19, 20, and 22 February 2013, but was by agreement
removed
from the roll. Further dates were arranged for the end of November
and beginning of December 2014.
[26]
A lay client is customarily entitled to regard an attorney duly
admitted to the practice of the law as a skilled professional
practitioner. Such a client places considerable reliance upon the
advice, competence, skill and knowledge of an attorney and trusts
that the attorney will fulfil his or her professional responsibility.
Applicant could therefore trust her attorney’s professional
view that he bona fide believed that the state attorney will condone
the failure. His professional view was in the circumstances
of the
case reasonable and there was no reason why applicant could doubt
same.
Moreover, in my view, the
refusal by the State Attorney to accede to the request to condone was
unwarranted having regard to the
factors that were placed before him
.
I am satisfied that the attorney’s admitted neglect should not
in the circumstances of this case, debar the applicant from
relief.
[27]
Accordingly, I make the following order:
1.
Condonation is granted for the
applicant's 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.
2.
The respondents are to pay the
costs of the application including the costs occasioned by the
employment of two counsel.
________________
L.B.J.
MOENG, AJ
On
behalf of applicant: Adv. JF Mullins SC and J Zietsman
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondents: Adv. B S Mene
Instructed
by:
State
Attorneys
BLOEMFONTEIN