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[2015] ZAFSHC 154
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Moodley and Others v South African National Roads Agency Limited and Others (1509/2010, 1510/2010, 1511/2010) [2015] ZAFSHC 154 (20 August 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case number: 1509/2010
1510/2010
1511/2010
In
the matter between:
SOOBRAMONEY
MOODLEY
1
st
Applicant
VIJAYKUMARIE
MOODLEY
2
nd
Applicant
VEKNESHAN
MOODLEY
3
rd
Applicant
and
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY
LIMITED
1
st
Respondent
VIJAYKUMARIE
MOODLEY
1
st
Third Party
PENNY
FARTHING ENGINEERING (SA) (PTY) LTD
2
nd
Third Party
JUDGMENT:
FISCHER,
AJ
HEARD
ON:
30
JULY 2015
DELIVERED
ON:
20
AUGUST 2015
[1]
This application turns on the interpretation and application of
Section 3 of the Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002 (“the Act”) relating to
facts arising out of a motor vehicle accident which occurred
on the
N6 National Road in the vicinity of Smithfield in the Free State
Province.
[2]
On 1 April 2007 and at 4h00, the Moodley family left Midrand in the
Gauteng Province by motor vehicle for a holiday in East
London in the
Eastern Cape Province.
[3]
At approximately 8h00 that same morning, having passed Bloemfontein
on the N1 National Road and thereafter proceeding down the
N6
National Road in the direction of Smithfield, they were involved in
an accident resulting in Mr and Mrs Moodley and their one
son (the
applicants) sustaining serious bodily injuries, the details of which
are irrelevant for purposes hereof.
[4]
Some 34 months later a notice in respect of each of the three
applicants, as envisaged in terms of Section 3 of “the Act”,
was sent to the South African National Road Agency Limited (SANRAL)
and 6 days before the three claims prescribed, as envisaged
in terms
of the
Prescription Act 68 of 1969
, action was instituted by the
applicants against SANRAL and several other defendants jointly and
severely for the recovery of damages
allegedly arising out of the
accident. Subsequently the claims against the other defendants
were withdrawn and Mrs Moodley,
the current second applicant and the
driver of the motor vehicle at the time of the accident, as well as
Penny Farthing Engineering
(SA) (Pty) Ltd (“Penny Farthing”)
were joined as first and second third parties to the claims.
[5]
SANRAL responded to the three claims by not only pleading over on the
merits, but, in additions thereto, raising a special plea
which reads
as follows:
“
AD
SPECIAL PLEA
:
1.1
The First Defendant is an organ of state as defined in terms of
section 4(1)(e)
of the
Institution of Legal Proceedings Against
Certain Organs of State Act, 40
of 2002 (“the Act”):
1.2
In
terms of section 3(1) of the Act, no legal proceedings for the
recovery of a debt may be instituted against an organ of state
unless:
(a)
The creditor has given the organ of state notice in writing of his or
her or its intention to institute
the legal proceedings in question;
or
(b)
The organ of state has consented in writing to the institution of
that legal proceeding.
1.3
The First Defendant pleads that the Plaintiff has not complied with
the peremptory provisions
of Section 3(1) of the Act and therefore
barred from instituting action against the First Defendant.
1.4
The First Defendant has not consented to the institution of this
action.
1.5
First Defendant prays that the special plea be upheld and that
Plaintiff’s claim be dismissed
with costs.
1.6
…”
[6]
The special plea and a subsequent denial in writing by SANRAL
“…
that
we… have any record of the initial letter of demand and kindly
request that you provide us with a copy thereof as well
as proof of
delivery”
,
followed by a court sanctioned pre-trial conference in terms whereof
the applicants accepted that they were obliged to launch
a
condonation application, eventually resulted in the present
application for condonation in terms of “the Act”.
[7]
Section 3 of “the Act” contains the relevent provisions
and reads as follows:
“
3.
Notice
of intended legal proceedings to be given to organ of state
(1) No legal
proceedings for the recovery of a debt may be instituted against an
organ of state unless-
(a) the
creditor has given the organ of state in question notice in writing
of his or her or its intention to institute
the legal proceedings in
question; or
(b)
the organ of state in question has consented in writing to the
institution of that legal proceedings-
(i)
without such notice; or
(ii) upon
receipt of a notice which does not comply with all the requirements
set out in subsection (2).
(2) A notice must-
(a) within six
months from the date on which the debt became due, be served on the
organ of state in accordance with section
4 (1); and
(b) briefly set
out-
(i) the
facts giving rise to the debt; and
(ii) such
particulars of such debt as are within the knowledge of the creditor.
(3) For purposes of
subsection (2) (a)-
(a) a debt may not
be regarded as being due until the creditor has knowledge of the
identity of the organ of state and of
the facts giving rise to the
debt, but a creditor must be regarded as having acquired such
knowledge as soon as he or she or it
could have acquired it by
exercising reasonable care, unless the organ of state wilfully
prevented him or her or it from acquiring
such knowledge; and
(b) a debt referred
to in section 2 (2) (a), must be regarded as having become due on the
fixed date.
(4) (a)
If an organ of state relies on a creditor's failure to serve a notice
in terms of 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 has 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.
(c)
If an application is granted in terms of paragraph (b), the court may
grant leave to institute the legal proceedings
in question, on such
conditions regarding notice to the organ of state as the court may
deem appropriate.”
[8]
Any uncertainty as to whether or not SANRAL was relying on the fact
that they had not received the Section 3 notice at all,
alternatively
that they had received such notice, but out of time, was clarified by
Mr Zietsman appearing for SANRAL that it could
be accepted for
purposes of the application that the Section 3 notices had been
received by SANRAL but way beyond the expiry of
the six month period
referred to in Section 3(2)(a) of the “the Act”.
[9]
What is quite clear from a reading of Section 3 of “the Act”
is that, notwithstanding the peremptory provisions
of Section 3(1)
and (2) thereof, the legislature has nevertheless seen fit to afford
a claimant the right to apply for and be granted
condonation for
failing to send a notice within the six month period referred to in
Section 3(2) of “the Act”, provided
that the three
criteria referred to in Section 3(4)(b) have been met (See
Minister
of Safety and Security v De Witt
[2008] ZASCA 69
;
2009 (1) SA 547
(SCA) para [12] and [13]).
[10]
In terms of Section 3(4)(b) of “the Act” a court must be
“
satisfied
that”
the
three criteria have been met, which the SCA has interpreted as not
meaning proof on a balance of probabilities but rather 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]
and
Minister
of Agriculture and Land Affairs v C J Rance
2010 (4) SA 109
(SCA) at para [33]).
[11]
It is not in dispute that the claims have not been extinguished by
prescription. What is in dispute is firstly whether
or not
“
good
cause”
exists
and secondly whether or not SANRAL, as an organ of state, has been
unreasonably prejudiced by the applicants’ failure
to timeously
send the relevant notice of intended legal proceedings.
[12]
The determination of what exactly
“
good
cause”
entails,
has enjoyed the attention of the SCA over several years and involves
the consideration of a number of factors which have
a bearing on not
only the rights of the individual seeking condonation but, as
importantly the rights of an organ of state not
to be unduly
prejudiced by delay. These factors may include (1) the
prospects of success (2) a full explanation for the delay
covering
the entire period of the delay (3) the sufficiency of the explanation
for the delay (4) the
bona
fides
of the applicants and (5) whether or not any other party could be
held responsible for such delay (See
Madinda
case
supra
at 316E-F,
Minister
of Agriculture and Land Affairs v C J Rance
supra
at 117C-G and
MEC
for Education, KZN v Shange
2012 (5) SA 313
at para [15]).
[13]
The chronology of events giving rise to the present application as
well as the explanation for the delay are set out in a founding
affidavit deposed to by one Stephen Bezuindenhout (“Bezuidenhout”),
an attorney and director of applicants’ attorneys
of record
Ronald Bobroff and Partners Inc. (“the attorneys”).
[14]
What is most disturbing is that it is not Bobroff but Bezuidenhout
who deposes to the founding affidavit notwithstanding the
fact that
Bezuidenhout only took over the files from Bobroff during December
2011.
[15]
The founding affidavit contains reference to no less than 13
so-called
“
file
notes”
and
“
memos”
prepared
on the face of it by various clerks and candidate attorneys who, at
the time of filing of the current application, were
no longer in the
employ of the attorneys. Bobroff, for reasons that were never
explained, chose not to depose to any affidavit
in support of the
founding papers but, for the first time and in a replying affidavit,
states that from May 2007 when the applicants
first attended at his
office and until December 2011, the applicants files were under his
control and that he had from time to
time instructed the various
clerks and candidate attorneys as evidenced by the
“
file
notes”
and
“
memos”
.
[16]
The founding affidavit,
“
file
notes”
and
“
memos”
evidence
the following activities by the attorneys pursuant to the accident on
1 April 2007:
1.
On 29 May 2007, being some two months after the accident, one or more
of the applicants approached the attorneys
who, according their
letter head, hold themselves out as
“
The
Leaders in Medical Negligence and Personal Injury Claims”
.
2.
The first file note dated 29 May 2007, contains a terse summary which
reads as follows:
“
Clients
travelling on highway past Bloem when they hit a pothole the size of
a small car which was not visible from afar.
Client lost
control of the car, and the trailer swung out and the car hit a
tree”.
The file note further
records that certain members of the Moodley family were admitted to
hospital and that attempts were made to
obtain a copy of the Accident
Report from the South African Police Services in Smithfield.
3.
The very next file note is dated 9 March 2009, being some 22 months
after the Moodleys first attended at the
offices of the attorneys,
and records the following:
“
Received
file from Darren today, with file note. No work has been done
on the file.”
The file note furthermore
records that attempts were made to obtain a MMF1 form which,
according to Mr Davel appearing for the applicants,
relates to Road
Accident Fund claims which by the very nature thereof involve the
negligence of a Third Party.
4.
According to a file note dated 9 April 2009 the whole Moodley family
attended at the offices of the attorney
so as to consult.
Affidavits were redrafted, executed and returned to the attorneys.
These affidavits do not feature
in the present proceedings.
5. On
19 May 2009 a file note records that Mrs Moodley (second applicant)
was now herself attempting to obtain
a copy of the Accident Report
from the South African Police Services in Smithfield.
6.
On 26 May 2009 a memo directed to one Bronwen by one Lia records that
Lia
“
looked
through
these
matters and discussed them with Darren, these matters are not RAF
matters.
These
are general matters and we need to issue a letter of demand and
summons against the responsible person.
We
must quickly determine who the responsible party is who has control
over the roads in that area (Smithfield, Bloemfontein)
.”
(my
emphasis)
7.
Various
“
file
notes”
and
“
memos”
show
that by 27 November 2009 the attorneys were still attempting to
obtain a copy of the accident report and eventually and on
22 January
2010 a file note by one Jessica records that now, for the first time,
and after numerous phone calls, the attorneys
had identified SANRAL
as the responsible party against whom the claims for general damages
had to be instituted as opposed to the
Road Accident Fund
8. On
17 February 2010 the three notices as envisaged in terms of Section 3
of “the Act” were sent
to SANRAL by means of registered
letters.
9.
The further annexures to the founding affidavit contain reference to
a detailed report compiled by Ferlio Group
of Investigators which
itself contains reference to affidavits deposed to by all the
Moodleys, one Constable Bikitshi who attended
at the scene and
compiled the Road Accident Report, one Mr Pretorius who attended at
the scene with a breakdown vehicle, a copy
of the Road Accident
Report as well as a memorandum from a certain Louis Roodt who appears
to be a road transport safety expert.
[17]
The three claims were served on SANRAL on 25 March 2010 and
subsequently amended to deal with the withdrawal of claims against
certain other defendants and the joinder of both Mrs Moodley, being
the driver of the motor vehicle at the time of the accident
and Penny
Farthing as first and second third parties.
[18]
I believe it is apposite to deal with the pleadings in this regard as
the contents thereof, read together with annexures to
the application
papers as well as the pleas filed on behalf of SANRAL and Penny
Farthing, would place this court in a more favourable
position to
determine the prospects of success in the context of
“
good
cause”
.
[19]
The three claims are based on essentially the same cause of action
and seek to hold SANRAL liable on the following basis:
“
10.
The sole cause the collisions was the negligence of [SANRAL] who:
10.1
failed to ensure that the potholes were properly indicated (sic) to
vehicular traffic;
10.2
failed to ensure sufficient and lawful road signage were (sic)
installed;
10.3
failed to have due regard to users of the N6 along Smithfield and in
particular the plaintiff;
10.4
failed to take reasonable steps that could and should have avoided
the incident;
10.5
failed to adequately and properly design and construct the road;
10.6
failed to provide road users with a functional and safe road and
driving environment;
10.7
failed to warn road users of the potential danger that exists at the
point of collision on the N6 Freeway;
10.8
failed to timeously repair the pothole along the N6 Freeway that
caused the incident.
Alternatively
10.9 by
reason of the facts alleged above, (SANRAL) owed the plaintiff a duty
of care to ensure that:
10.9.1 the
road was properly indicated to vehicular traffic;
10.9.2 ensure
sufficient and lawful road signs were installed;
10.9.3
reasonable steps be taken to avoid the incident;
10.9.4 the
design of the road was adequate and proper;
10.9.5 the
road functional and safe to road users; and
10.9.6
potential danger that exists at the point of collision on the N6
Freeway was properly prepared.”
[20]
In response thereto and in pleading over on the merits, SANRAL filed
the usual plea containing a denial, alternatively a denial
that
SANRAL was responsible for the collision, further alternatively that
should it be found that SANRAL was negligent, then in
such event that
Mrs Moodley, being the driver of the motor vehicle at the time of the
collision was also negligent in that:
“
9.3.1
She failed to keep a proper lookout;
9.3.2
She failed to apply the brakes of the vehicle in time or at all or
sufficiently;
9.3.3
She travelled at an excessive speed under the prevailing
circumstances;
9.3.4
She failed to prevent the collisions by the exercise of reasonable
care when she was in the
position to do so;
9.3.5
She failed to adhere to the road signs that what were present at the
point in time;
9.3.6
She failed to timeously swerve the vehicle to avoid a collision.”
The
plea concludes by alleging that at all material times Penny Farthing
had been contracted to attend to the construction, maintenance
and
upkeep of the N6 National Road and that Penny Farthing would be
joined as a Third Party. Penny Farthing, in its capacity
as the
second Third Party filed a plea similar to that filed by SANRAL.
The details thereof are irrelevant for purposes hereof.
[21]
It is unnecessary to deal at any great length with the documentation
referred to above save to record that (1) the Moodleys
encountered
extensive road works on the stretch of road immediately before the
accident, (2) the road was badly potholed and they
encountered a
stop/go station where they were brought to a standstill for a period
of time allowing Mrs Moodley to exchange places
with Mr Moodley who
had been driving up until that stage, (3) Mrs Mrs Moodley drove on
for several kilometres without encountering
any road signs and/or
road works whereupon she suddenly and unexpectedly encountered what
she initially described as a ditch running
across the road surface,
(4) she was obliged to swerve and in the process lost control of the
motor vehicle colliding with a tree
on the left-hand-side of the
road, (5) Mrs Moodley’s version was, to an extent, supported by
both Constable Bikitshi as well
as Mr Johannes Pretorius particularly
in so far as reference was made to both the existence of road works
as well as the poor condition
of the road surface.
[22]
During a subsequent pre-trial, SANRAL placed on record that it wished
to deal firstly with the special plea as envisaged in
terms of High
Court Rule 33(4) and furthermore that it had been prejudiced by the
applicant’s failure to respond to both
a High Court Rule 37(4)
questionnaire as well as a High Court Rule 21(1) request for
particulars relating to the accident scene,
identifiable fixed
points, the dimensions of the hole in the road, the distance between
the hole and the tree with which the Moodleys
had collided and the
existence and/or availability of relevant photographs.
[23]
As to
“
good
cause”,
the
following appears from what has been placed before me:
1. The
applicants have clearly set up a
prima facie
case of
negligence against SANRAL if regard be had to not only the
allegations contained in the pleadings as to where, when, in
what
manner and under what circumstances the accident occurred but, in
addition thereto the contents of the Road Accident Report,
the sworn
affidavits deposed to by the witnesses and finally the report
compiled by the investigators.
2. The
pleas on the merits, as already referred to, contain not only the
well-known denials and alternatives thereto
but, in conclusion, the
standard allegations of contributory negligence on the part of Mrs
Moodley in her capacity as driver of
the motor vehicle.
3.
There is nothing before me to suggest that the Moodleys were tardy in
consulting as soon as possible with the
attorneys, considering the
fact that the entire family was admitted to hospital after the
accident. It was in any event never
suggested that the Moodleys
themselves were negligent in only approaching the attorneys some 59
days after the accident.
4. Both
the applicants as well as the attorneys were thereafter involved in
attempts to obtain copies of the relevant
hospital records as well as
the Road Accident Report.
5.
No facts were placed before me to suggest that the applicants were,
before February 2010, aware of the requirement
contained in Section 3
of the Act. Of importance in this regard is that the papers
show that the applicants in fact approached
what they believed was a
firm of attorneys holding themselves out as
“
specialists
in medical negligence and personal injury claims”
.
6. I
must accept for purposes hereof that at all material times the
applicants were totally reliant on the expert
advice and guidance
offered by the attorneys. There is nothing on the papers to
suggest that the applicants were complicit
in the manner in which the
attorneys themselves went about handling the case.
7.
What is clear from the annexures to the founding affidavit is that
once SANRAL had been identified as the responsible
party on 22
January 2010, reasonably prompt steps were taken by the attorneys to
prosecute the applicant’s claims.
[24]
Mr Davel urged me to accept that, in the absence of any factors that
would be relevant by virtue of the provisions of Section
3(3)(a) of
the Act, the period of 6 months afforded the applicants, had only
started to run once the attorneys had acquired knowledge
of the
identity of the relevant organ of state, in
casu
SANRAL on 22 January 2010. Mr Davel was however at pains to
explain why, if that be the case, the application for condonation
had
been launched in the first place. Mr Zietsman on the other hand
argued that if regard be had to the memo of 26 May 2009,
referred to
in detail earlier, then that should be regarded as the date on which
the debt became due as it was on that date that
the identity of
SANRAL and the facts giving rise to the debt had been acquired as
envisaged in terms of Section 3(3)(a).
I am not convinced of
the merits of either argument as the
“
file
notes”
and
“
memos”
most
certainly suggest that the involvement of SANRAL could have been
established at an earlier stage by the exercising of reasonable
care
especially if regard be had to who the attorneys are, and the fact
that by 29 May 2007 such attorneys had been instructed
as to where
and in what manner the accident had occurred and that a Third Party
was not involved. (See
Premier
of the Western Cape Provincial Government NO v BL
[2012] 1 All SA 465
SCA at 470 to 471 and
Madinda
case
supra
at para [5]). By virtue of the conclusion I arrive at I deem it
unnecessary to go back further than 26 May 2009 as being
the date on
which the 6 month period would commence as well as being the date on
which the debt should be regarded as being due
as envisaged in terms
of Section (3)(3)(a).
[25]
Nothing whatsoever has been placed before me to suggest that any
blame for the delay in acting promptly and timeously, having
regard
to the provisions of Section 3 of the Act, can be laid at the door of
the applicants themselves. If anything, the
applicants were
badly let down by the attorneys who failed to exercise the
appropriate professional approach in taking the necessary
instruction
and thereafter enforcing the applicants’ claims timeously.
[26]
I am aware of the law relating to the question as to whether or not
attorneys mistakes are to be attributed their clients.
The
facts referred to above indicate that no blame for the delay or
failure can be attributed to the applicants and I believe any
further
prejudice can be prevented especially if regard be had to the fact
that the prospects of success tend, at this stage, to
favour the
applicants (See
MEC
for Education, KZN v Shange
2012 (5) SA 313
(SCA) at para [18] and [19].
[27]
Post-notification delays fall to be distinguished from
pre-notification delays, as the former do not constitute factors
which
must be taken into account for purposes of determining whether
or not
“
good
cause”
exists
as envisaged in terms of Section 3(4)(b)(ii). As I see it
post-notification delays and the reasons therefore are taken
into
account for purposes of considering the condonation as a whole (See
Madinda
case
supra
at para [20]). As regards the post-notification delays, there
was clearly a dispute between the parties as to what exactly
the
special plea entailed, namely, whether or not a notice had been sent,
alternatively sent timeously and this was only clarified
in part
during a pre-trial conference on 9 February 2015 and finally resolved
during the hearing of this application when Mr Zietsman,
on behalf of
SANRAL, confirmed that it was his client’s case that the
Section 3 notice had in fact been received but outside
the 6 month
period calculated as from 26 May 2009. No reason was advanced
as to why this fact had not been brought to the
attention of either
the applicants, alternatively their attorney at a far earlier stage.
[28]
Having regard to the “facts set up by the parties”, I
find that the facts in
casu
must be distinguished from the facts in
Minister
of Agriculture and Land Affairs v C J Rance
case
supra
as in this latter case it was the claimant company itself which made
futile, ill-advised and unexplained attempts to identify the
correct
organ of state and not its attorneys of record. I believe the
approach in the
Madinda
matter
supra
is more apposite as in this latter case the claimant relied on her
attorneys of record and the SCA granted condonation on the basis
that
the three criteria in terms of section 3(4)(b) had been met.
[29]
In terms of Section 3(4)(b)(iii), the applicants also have to satisfy
this court that SANRAL has not been unreasonably prejudiced
by their
failure to serve the notices within the six month period. In
determining whether or not unreasonable prejudice exists
as a fact,
sight should not be lost of the reason why notices of the type
contemplated in Section 3 of the Act have been insisted
upon by the
legislature (to afford large institutions an opportunity to
investigate) (See
Minister
of Agriculture and Land Affairs v C J Rance
case
supra
at paras [13] and [14]). In addition thereto a common sense
approach is required in dealing with the relevant facts which,
more
often than not, lie particularly within the knowledge of the opposing
parties, in c
asu
SANRAL and Penny Farthing (See
Madinda
case
supra
at para [21]). Notwithstanding the fact that the applicants
carry the onus in this regard, I will refrain from assuming prejudice
in the absence of any factual basis therefore raised by either
SANRAL, alternatively Penny Farthing.
[30]
The facts raised on behalf of both SANRAL and Penny Farthing in
support of the contention that SANRAL has been
“
unreasonably
prejudiced”
,
are the following:
1. The
accident took place on 1 April 2007.
2. The
relevant stretch of the N6 National Road on which the accident took
place was under construction in terms
of a contract concluded between
SANRAL and Penny Farthing.
3. The
6 month period commenced, on SANRAL’s version on 26 May 2009.
4.
On 17 February 2010 the
relevant Section 3 notices were sent.
4. The
application for condonation was launched shortly after a court
sanctioned pre-trial meeting during which
it was agreed that a
substantive application for condonation be launched by the
applicants.
5. In
their answering papers both SANRAL and Penny Farthing claimed that
they had been unreasonably prejudiced
by the failure on the part of
the applicants to send the Section 3 notices within 6 months of 26
May 2009. Penny Farthing,
in its capacity as the second Third
Party relied on the alleged prejudice suffered by SANRAL which may be
summarised as follows:
(i)
SANRAL appointed Penny Farthing to act as the main contractor
responsible for the construction,
maintenance and upkeep of the N6
National Road.
(ii)
The contract concluded with Penny Farthing was for a stipulated
period from 1 September 2004 to 31
August 2007.
(iii)
By the time the applicants eventually gave notice during February
2010 the construction and maintenance
had already been completed and
no investigation of the accident scene could accordingly be
conducted.
[31]
If the aforegoing facts are approached on a common sense basis, I
find it hard to accept that either SANRAL or for that matter
Penny
Farthing, were
“
unreasonably
prejudiced”
by
any delay on the part of the applicants, or for that matter the
attorneys. The accident took place on 1 April 2007 on a
stretch
of road that was in the process of being constructed and maintained
which, by the very nature thereof, meant that both
the road and its
surface as well as the shoulders and reserve thereof were constantly
undergoing a material change on a daily basis.
On SANRAL’s
own evidence their contract with Penny Farthing was only up until 31
August 2007, being 5 months after the accident
and there is nothing
on record to suggest that Penny Farthing remained on site thereafter.
[32]
Given the particular circumstances of the case and notwithstanding
the conduct of the attorneys, I believe that, even if the
Section 3
notices had been sent shortly before the expiry of the 6 month period
in early November 2009, SANRAL would have, for
all practical
purposes, been notified of the pending claim more than two years
after the expiry date of the contract with Penny
Farthing. Had
that been the case, SANRAL would have been prejudiced by events well
beyond both the scope of the Act as well
as the control of the
applicants.
[33]
The irony of the matter is that even if it could have been argued
that, given the evidence the attorneys were privy to on 1
April 2007,
SANRAL should have been identified as the relevant organ of state and
notified within 6 months of such date, the road
works would in any
event have been completed long before SANRAL had received the notices
and thereby afforded an opportunity to
investigate the claims (See
Minister
of Agriculture and Land Affiars v C J Rance
case
supra
at para [13] and [14].
[34]
The post-notification delay in bringing the current condonation
application has not, on the papers before me, exacerbated the
prejudice either SANRAL, alternatively Penny Farthing has allegedly
suffered. As mentioned earlier, It was only at a court
sanctioned pre-trial conference during February 2015 that it was
agreed that a substantive condonation application be launched
for the
late sending of the Section 3 notices and that it was thereafter and
only during argument before me that Mr Zietsman conceded
that it was
as such his client’s case that the notices had been received,
but well outside the expiry of the 6 month period.
[35]
In the context of the undisputed facts placed before me and having
regard to the relevance of the combined weight to be attached
to the
three criteria contained in Section 3(4)(b) of the Act, and in
adopting a common sense approach, I find that
“
good
cause”
exists
for the failure and furthermore that SANRAL, as an organ of state,
has not been unreasonably prejudiced by the failure on
the part of
the applicants to dispatch the notice of intended legal proceedings
within 6 months from the date on which the debt
became due, being 26
May 2009. I accordingly believe that I should exercise my
discretion in favour of the applicants and
this notwithstanding the
unfortunate manner in which their claims were dealt with and managed
by the attorneys. The dictates
of justice and fairness do not,
in the circumstances of the present application, justify this court
depriving the applicants of
an opportunity to place their case before
a court of law.
[36]
In considering an appropriate order as to costs I have a discretion
which I am obliged to exercise judicially and upon a consideration
of
all the relevant facts of the particular case, striving to be fair to
all concerned (See
Naylor
v Jansen
2007 (1) SA 16
(SCA) at 23F – 28F). I am furthermore
mindful of rules that have been developed over a period of time and
which serve
as guidance in exercising my discretion. In
casu
and where a successful application is launched for the grant of an
indulgence the general rule is that the costs do not follow
the event
(See
Mann
v Leach
[1998] 2 All SA 217
(E) at 221). Where however the application
for the grant of an indulgence is unreasonably opposed the
respondents may be
deprived of their costs and, in appropriate
circumstances be ordered to pay the costs of opposition to the
application (See
Rautenbach
v Symington
1995 (4) SA 583
(O)).
[37]
To my mind both SANRAL and Penny Farthing acted unreasonably in
seeking to oppose the application. In this regard I pause
to
emphasize that SANRAL’s plea was filed as far back as 1
February 2012, whilst the plea of Penny Farthing, in its capacity
as
the second Third Party was filed some 6 weeks later and on 16 March
2012. In opposing the application both SANRAL and
Penny
Farthing lost sight of the fact that, on their own versions, they had
not been unreasonably prejudiced by any failure on
the part of the
applicants, either pre- or post-notification in terms of Section 3.
In the circumstances and in exercising
my discretion in favour of the
applicants I find that the first respondent and the second Third
Party should pay the costs occasioned
by opposition to the
application for condonation.
[38]
The following order is made:
1.
Condonation
is granted for the applicants’ 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 lay down in Section 3(2)(a) of “the Act”.
2.
The
applicants must pay such costs of the application as would have been
incurred had there been no opposition.
3.
The
costs incurred by the applicants in consequence of the opposition to
the application for condonation must be paid by the first
respondent
and the second Third Party jointly and severally, the one paying the
other to be absolved.
______________
P.
FISCHER, AJ
On
behalf of the appellant: Adv. W. Davel
Instructed
by:
Matsepes
Inc
BLOEMFONTEIN
On
behalf of the first respondent: Adv. P. J. J. Zietsman
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the second
respondent
and second
Third
Party:
Adv. W. A. van Aswegen
Instructed
by:
Webbers
BLOEMFONTEIN
/eb