About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 194
|
|
Van Den Berg v Naledi Local Municipality (3493/2013) [2014] ZAFSHC 194 (30 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 3493/2013
In
the matter between:
ERNST
HENDRIK VAN DEN BERG
…................................................................................
Applicant
and
NALEDI
LOCAL MUNICIPALITY
…................................................................................
Respondent
HEARD
ON:
12 JUNE 2014
JUDGMENT
BY:
JAJI, AJ
DELIVERED
ON:
30 OCTOBER 2014
[1]
This is an application for condonation in terms of Section 3(4)a of
the Institution of Legal Proceedings against certain organs
of State
Act, 40 of 2002 [“the Act”].
[2]
Applicant had failed to send a notice of intention to institute legal
proceedings against respondent within the required period
of six
months in respect of applicants first and second claims as set out in
the applicant’s summons under case number 3493/2013.
[3]
Applicant claims for costs only in the event the application is
opposed by the respondent.
[4]
BACKGROUND
(i)
The applicant (plaintiff) in the main action had issued summons
against the respondent for damages sustained as a result of
three
different claims (fires);
(ii)
These claims arising out of the different fires were alleged fires on
08/07/2011, 17/06/2012 and the third one of 01/06/2013;
(iii)
The third claim (fire) is irrelevant for the purpose of condonation.
The notice in respect of it complied with the requirements
of the
“Act”;
(iv)
The applicant in its Particulars of Claim had claimed to have
complied with the requirements of the “Act” especially
with regards to first and second claims (fire of 08/07/2011 and
17/06/2012);
(v)
It is claimed by the respondent that these allegations were incorrect
and untrue to the applicant’s knowledge. The
notice of
the intention to institute legal proceedings in respect of the three
fires was only given on 08/07/2013;
(vi)
The respondent denied that there was compliance with the “Act”
and proceeded to file a special plea to that effect;
(vii)
The respondent prayed for both first and second claims to be
dismissed with costs for want of compliance with the “Act’.
It claimed that the applicant (plaintiff) was barred from claiming
damages from respondent (defendant) as a result of the alleged
fires
of 08/06/2011 and 17/06/2012 respectively because of the
non-compliance with peremptory provisions of the “act”
(failure to give the required notice as required).
[5]
THE APPLICATION
(i)
The respondent filed an affidavit with the Notice of motion
explaining the aim of the application which was obviously for
condonation
in terms of the “Act” for failure to send the
required notice within six (6) months from the date of the alleged
cause
of action;
(ii)
It annexed to the papers annexure “E4” which is a photo
or “clip” of “Google Maps” depicting
the area
ravaged by the fires.
(iii)
The applicant submitted and explained the grounds and reasons for its
failure not to institute notice in time as follows:
-
That in the last ten years, the same spot of its property had fires
almost seven times;
-
That through the years, he had tried different attempts through his
attorneys to take these up with the respondent;
-
That the applicant undertook the talks with the respondent on
friendly basis hoping that these attempts to sort the fires would
bear or yield positive results and that the respondent would give
attention and take steps to sort the problem;
(iv)
He claimed that early in 2013, he decided as a result of the two
previous fires (08/07/2011 and 17/06/2012) to institute a
claim when
his attorney advised him that the required notice had not been
filed. It attached letter annexure “E12”
and “E13
in this regard.
(v)
The applicant averred that after the exchange of the letters, he
initially decided not to sue but later after the fire of 01/06/2013
and its damages decided to sue. He explained that the reason he
did not sue for the first two fires was that he had thought
the
problem was going to be sorted on a friendly manner (good
neighbourliness).
(vi)
He had annexed different letters to the respondent from his attorneys
dating back from June 2004 advising them of the problem.
He
further averred that the personnel of the respondent visited the site
and respondent has been all along aware of the problem.
[6]
ARGUMENT
(i)
Applicant’s counsel argued that the background to these fires
was clearly depicted in annexure “E4”.
The place
where the fire started is a dumping site which is in the border of
the respondent’s land;
(ii)
It was argued that these fires caused heavy, widely smoke and as such
could not have escaped respondent’s attention;
(iii)
It was further averred that the claims had not prescribed when the
application was brought before court and this has not been
denied by
the respondent;
(iv)
The problem, it is alleged was brought to the defendant in December
2010 and good neighbourliness was followed for instance
visiting and
approaching the respondent.
(v)
The applicant referred to
Madinda’s
case regarding the test of “overall impression”. It
argued further that condonation could not have been unreasonably
prejudicial to the respondent because the matter was brought to its
attention. The fact that the fires took place over years
has
been brought to the respondents’ attention.
(vi)
Applicant referred to a letter “E26” of the papers
addressed to the municipal manager of the respondent.
Apparently as per the letter, the municipal manager was going to
investigate as per the letter dated 08/11/2012. This letter
was
allegedly not denied and therefore it was impossible for the
respondent to have been unreasonably prejudiced;
(vii)
Applicant argued that even though no formal demand was made,
something better happened. The respondent was visited within
5
(five) months.
(viii)
Applicant claimed that good cause has been shown. The founding
affidavit dealt with the manner the matter was addressed
over the
years through the letters. It claimed that only in the third
fire, it realised that this was not working hence it
decided to sue.
It argued that its good neighbourliness must not be used against it.
(ix)
It argued that facts setting out the alleged unreasonable prejudice
by the respondent have not been laid out. It claimed
that the
respondent alleged these only in theory. There were no material
facts to substantiate.
(x)
It prayed for costs as per the notice of motion.
[7]
RESPONDENTS OPPOSITION
(i)
It submitted that the applicant has failed to advance good cause for
its failure, alternatively the reasons advance does not
constitute
good cause for the failure and secondly the respondent has and will
be unreasonable prejudiced in the conduct of the
case as a result of
the applicant’s failure to give timeous and proper notice of
its intention to institute legal proceedings.
(ii)
It submitted that as per the founding affidavit, applicant
intentionally (wilfully) refrained from giving notice of intention
to
recover the so called “debt” as he never had the
intention to recover same:
(iii)
The respondent argued that the gist of the application was that the
applicant wilfully and intentionally refrained from giving
the
required notice within six months of his intention to sue as a result
of the alleged fires which he holds the respondent liable;
(iv)
It claimed that it was not afforded opportunity to investigate the
specific instances, to identify potential witnesses and
to inspect
the alleged damages complained of. The resultant effect was
that the applicant who initially did not intend to
sue, now,
unreasonably prejudiced the respondent with regards to identification
of witnesses and obtaining evidence to properly
conduct its case.
(v)
The respondent argued that the applicant has been assisted by and
attorney. The requirements of the “Act”
are clear
that the applicant had to sue within six (6) months. There is
no reason or explanation for non-compliance.
It argued that
all the three (3) requirements have to be satisfied by the applicant
before the court can exercise its
discretion. The notice was
properly served in November 2013 and the condonation was in April
2014.
(vi)
There is no explanation for the further default. The respondent
argued that this was not a normal failure to act where
you deal with
a lay person. The applicant is represented by an attorney of
the court. Clearly the applicant did not
want to sue but he
changed later and decided to sue.
(vii)
The respondent stated that the prompt investigation of the fire was
necessary. It referred to the case of
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010 (4) SA 109
(SCA).
“
Prompt
investigation of the fire was critical. Changes in climate,
vegetation and so form can markedly prejudice any investigation”
(viii)
Prejudice in this matter, according the respondent was self-clear;
applicant can’t argue that the prejudice is not
laid down.
Applicant has the burden to satisfy the requirements. The
respondent says it does not know which fire, how
much damages if any
sustained by applicant. The application for condonation was
only brought after the plea was filed.
[8]
The respondent referred the court to
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) as well. It also referred to
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996 (1) SA 215
(W) AT 227 I – 228F.
“
The
court looks at the reason for the delay, the sufficiency of the
explanation offered, the bona fide of the applicant, and any
contribution by other persons or parties to the delay and the
applicant’s responsibility therefore.”
(i)
Respondent claimed that one of other factors in connection good cause
practically synonymous with “sufficient cause”
besides
the efficient furnishing explanation of his default sufficiently is
linked to the failure to act timeously.
(ii)
The court was further referred to
Mohlomi
v Minister of Defence
1997 (I) SA
124 (CC) where the court stated the following:
“
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”.
(iii)
The respondent quoted the
CJ Rance’s
case where the judge alluded that
“
in
a case of condonation, the applicant is required to give explanation
of the entire period of the delay and must be reasonable”.
Further
it was required that condonation must be applied for as soon as the
party realises that it is required. The court
dealt with the
prejudice caused by inability to conduct its own investigations etc.
In the present matter, respondent was
expected to conduct such
investigations some three years after the fire. Clearly
prejudice is self-evident. The respondent
in its opposition,
paragraph 19 of the answering affidavit stated that it was not
afforded the opportunity to investigate the specific
instances, to
identify witnesses and to inspect the alleged damages of which
applicant complains.
(iv)
The applicants delay, it is submitted by respondent was a wilful
default. It was intentional not as a result of an oversight.
The letters referred to by the applicants conversely prove his
intentional refusal to sue instead of assisting him.
(v)
The delays after six month period expired, is quite long. The
applicant being assisted by attorneys throughout, there
is simply no
reasonable explanation for the delay before the application was
made. The result is that the applicant has failed
to satisfy
all the requirements to succeed with the application for condonation.
[9]
APPLICANT’S RESPONSE
(i)
It argued that
the periods of delay have been explained. The municipal manager
was taken to site of the first fire.
There can never be any
reasonable prejudice because the place was visited. The
applicant argued that he explained why he
did not follow the formal
approach.
[10]
CONCLUSION
(i)
The applicant did not take action when the “good
neighbourliness” approach did not yield positive results.
He had an attorney at his side all along. What was the
relevance of visiting the municipal manager? Does the law
require
of him to do so? The law requires of him to serve a
notice of intention to sue (6) months from the date when the cause of
action arose. The “good neighbourly” approach
preferred by the applicant cannot replace legal obligation.
(ii)
The court can only exercise discretion once the applicant has
satisfied the requirements of the act. There is no explanation
why the application for condonation was brought after the filing of a
plea. The explanation is terse or no explanation at
all.
In any event applicant clearly did not want to sue (see paragraph 7.7
of founding affidavit) page 12 of the papers.
“
Na
aanleiding van daardie skrywes het ek eers besluit om nie daardie
eise in te stel nie.”
(iii)
Applicant did not address to the respondent its formal notice of
intention to sue. The respondent contended that as a result
it did
not investigate. The applicant referred in its heads of
argument to the case of
Premier,
Western Cape v Lakay
2012 (2) SA 1
(SCA) at 9C
“
word
uitgewys dat die primêre doel was die Wet is dat kennisgewing
op ‘n vroeë stadium aan ‘n staatsorgaan
gegee word
……”
“
Obviously
to enable it to investigate the basis of the proposed claim.….”
(iv)
It is stated in the case of
Madinda
that “it is the overall impression made on a court which brings
a fair mind to the facts set up by the parties. Clearly
as the
applicant had conceded in its papers that he did not want to sue on
the explanation offered by the applicant regarding delay,
it cannot
be said that it was an explanation offered sufficiently. There
is no explanation for the delay dating back to June
2011 to June 2012
leading to November 2013 up to April 2014.
(v)
In the case of
CJ Rance and the
Minister of Agriculture and Land Affairs
,
it was held that condonation must be applied for as soon as the party
concerned realises that is required. In the present
case, his
attorney advised him early in 2013 that the required notice has not
been sent. Strangely the application for condonation
was
brought in April 2014.
(vi)
The letters annexed by the applicant did not assist the applicant’s
application. The letter annexed E13 (dated
25/04/2013) clearly
it corroborates the version of the respondent that the applicant did
not want to sue. Hence it is stated
in the letter
“
ons
bevestig dat ons op die stadium (24/04/2013) nie voortgaan met enige
stappe teen munisipaliteit nie…
”
The
letter, annexure E15 clearly refers to 2013 after the fire, annexure
E7 letter dated 08/11/2012 relates to a meeting with the
municipal
manager. Allegedly he promised to investigate long after the
fires (08/07/2011 and 17/06/2012).
(vii)
Regarding the reasonable acceptable explanation. In his
founding affidavit applicant alleged that it was early in 2013
when
his attorney advised him that the notice was not given. “The
explanation for the delay is not sufficient. The
first fire was
on the 08/07/2011, the second one on the 17/06/2012. Even if an
explanation of good neighbourliness is accepted
for the delay between
the initial date of the cause of action, there is no explanation for
the delay subsequent to the realization
by the attorney that notice
was not given. i.e. early in 2013. The application for
condonation is only brought in April 2014.
In the matter of
Ethekwini Municipality v Ingonyama
Trust
2014 (3) SA 240
(CC) the SCA
having decided in favour of the respondent in an application to the
Constitutional Court for leave to appeal against
the decision which
was filed more than two months after the deadline for doing so.
The applicant (municipality) asked the
constitutional court for
condonation for its late lodging thereof. The court restated
the requirements for granting condonation
and identified the cause
and extent of the delay, as well as the prospects of success as the
prominent factors in determining whether
condonation should be
granted in the case. It held that the application for
condonation had to fail for the following reasons.
a)
Where the delay was not short, the explanation given must not only be
satisfactory but must also cover the entire period of delay.
Apart from being unsatisfactory, the explanation furnished did not
cover the entire period. Consequently, the applicant had
failed
to establish that the non-compliance was pardonable. The court
further noted that the conduct of litigants to observe
the rules of
court, was unfortunate and should be brought to a halt. The
court cannot continue issuing warnings that are
disregarded by
litigants. It must find a way of bringing this unacceptable
behaviour to a stop. One way that readily
presents itself is of
the court to require compliance with the rules and refuse condonation
where these requirements are not met.
Compliance must be
demanded, even in relation to rules regulating applications for
condonation. Consequently therefore, the
application for
condonation and leave to appeal were dismissed with costs.
In
the case at hand, the explanation given is insufficient,
unsatisfactory and furthermore did not cover the whole period of
delay.
(viii)
In dealing with an unacceptable explanation for the delay, the court
in the matter of
Beweging vir
Christelik– Volkseie Onderwys and Others v Minister of
Education and Others
[2012] 2 ALL
SA 462
(SCA) noted the following:
“
The
explanation for the delay was unacceptable. In some instances, no
explanation at all is tendered,
while in others it is
so threadbare as to amount to no explanation. Throughout, there is a
dearth of detail and where explanations
were offered, they tend to
indicate that the appellants dragged their heels throughout and did
not take steps to safeguard their
interests with reasonable
expedition. The delay was lengthy and its cause was the laxity and
indifference of the appellants. In
summary, no full and reasonable
explanation has been given for the entire period of the delay.”
The
application was dismissed without the merits even being considered.
Similarly
in the present matter, applicants clearly stated in his affidavit
that the appellants dragged their heels throughout and
did not take
steps to safeguard their interests with reasonable expedition.
Clearly from some of the correspondence addressed
to the respondent
(E13, letter dated 25/04/2013) stating that the applicant decided not
to sue. The respondent clearly was
prejudiced as it laboured
under the impression that it would not be sued, in any event sued now
for matters that arose in 2011
and 2012 respectively. The
letter (E13) is dated 25/09/2013. The letter by the applicant
contradicts the averments
made in paragraph (7.6, page 11) in his
founding affidavit i.e
“
vroeg
2013 het ek dit oorweeg om ten aansien van die vorige twee brande (08
Julie 2011 en 17 Junie 2012) eise in te stel.
My prokureur het
my egter adviseer dat die nodige kennisgewing nie gegee is nie.”
In
taking the totality of submissions in context, overall impression and
the conduct of the appellant, the court reaches an inescapable
conclusion that the applicant failed to satisfy the requirements to
succeed with the application for condonation.
The
application for condonation is thereby dismissed with costs
[11]
Accordingly, I make the following order:
1.
The application for condonation is dismissed.
2.
The applicant is ordered to pay the costs of the application
___________
N.P.
JAJI, AJ
On
behalf of applicant: Adv H. Benade
Instructed
by:
Symington
& De Kok
Bloemfontein
On
behalf of respondent: Adv
N. Snellenburg
Instructed
by:
Bahlekazi
Attorneys
Bloemfontein