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[2014] ZAFSHC 237
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Strydom and Another v MEC: Police, Roads and Transport Free State Province (5042/2012) [2014] ZAFSHC 237 (6 November 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 5042/2012
In
the matter between:
JACO
STRYDOM
….....................................................................................
1
st
Applicant/1
st
Plaintiff
FERDINAND
FREDERICK BEHM
….........................................
2
nd
Applicant/2
nd
Second Plaintiff
and
MEC:
FOR POLICE, ROADS AND
TRANSPORT
FREE STATE PROVINCE
…....................................................
Applicant/Defendant
CORAM:
MURRAY, AJ
HEARD
ON:
30 OCTOBER 2014
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
6 NOVEMBER 2014
[1]
This is an application in terms of section 3(4) of the Institution of
Legal Proceedings against Certain Organs of State Act,
Act 40 of 2002
(“the Act”). The applicants seek condonation of
their non-compliance with section 3(2)(a) of the
Act by failing to
serve a notice of intention to institute legal proceedings against
the respondent within the specified six months.
The respondent
opposed the application.
[2]
Both applicants are adult males residing in Vrede in the Free State
Province. The first applicant is a security officer
and the
second an auto electrician. They are the plaintiffs in an
action against the MEC for alleged damages which they suffered
during
a single vehicle accident on the R546, approximately eight kilometres
from Vrede, on 23 January 2010. The first applicant
was the driver of
the relevant vehicle and the second applicant was his passenger.
[3]
Summons in the action was served on the respondent on 12 December
2012, one month before the claim would have prescribed. The
applicants’ section 4(1) notice was filed only five days before
the summons, two-and-a-half years after 23 July 2010 which
marked the
end of the prescribed six months period.
[4]
The legal requirements for issuing summons against an organ of state
to recover a debt, as
in casu,
are fully set out in section 3 of the Act which specifies that:
“
(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 proceeding(s)-
(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.”
[5]
In terms of section 3(4)(a) of the Act, a creditor who failed to
comply with section 3(1) and (2) may apply to a court with
jurisdiction for condonation of such failure if the relevant organ of
state relies on such failure. In terms of section 3(4)(b)
a
court may grant an application for condonation 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.”
[6]
Section 3(3)(c) makes it clear that the prohibition in section 3(1)
on the institution of such legal proceedings without compliance
with
section 3(1)(b)(i) and section 3(2) is meant to be enforced unless
condonation is asked and granted in terms of section 3(4)(a).
Subsection 3(c) determines that if condonation is granted in
terms of subsection (4)(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.”
The
court therefore has a discretion to grant not only condonation, but
also leave to institute legal proceedings if such condonation
has
been granted.
[7]
In
Madinda
v Minister of Safety and Security
[1]
the Supreme Court of Appeal made it clear that a court’s power
to grant condonation is not unfettered. That is why
section
3(4)(b) determines that the court needs to be satisfied with
the three specified requirements before granting such
condonation.
In my view the use of the word “
and
’
instead of “
or
”
in section 3(4)(b) is a clear indication that the legislature
intended to require compliance with all three of the requirements
before a court may grant such condonation. This interpretation is in
accordance with what the Court held in
Madinda,
[8]
The Supreme Court of Appeal has acknowledged that in section 3(4)(b)
the phrase
‘
if
[the court] is satisfied’
sets
“
a
standard which is not proof on a balance of probabilities but rather
an overall impression made on the court which brings a fair
mind to
the facts set up by the parties”
.
[2]
[9]
The applicants in the present matter did pass the first hurdle
towards condonation, in that their claim has not prescribed,
by
serving their summons on the respondent a month before such claim
would have prescribed. This court therefore needs to
determine
whether the applicants also met the remaining two statutory
requirements, namely to show ‘good cause’ for
the delay
and to prove ‘no unreasonable prejudice to the respondent’.
[10]
In order to determine whether ‘good cause’ exists, the
court needs to investigate those factors which pertain to
the
fairness of granting the relief and the proper administration of
justice. It has been held that there is no exhaustive list
of factors
to be considered, but that some relevant ones might be the reasons
for the delay, the sufficiency of the explanation
offered, the
bona
fides
of the applicants, any contribution by other persons or parties to
the delay, the applicants’ responsibility for the delay,
and
the prospects of success in the proposed action.
[3]
[11]
In
Silber
v Ozen Wholesalers (Pty) Ltd
[4]
Schreiner JA said:
“…
the
defendant must at least furnish an explanation of his default
sufficiently full to enable the Court to understand how it really
came about, and to assess his conduct and motives.”
According
to Heher JA
[5]
, the court
accepted that this principle is also applicable to the interpretation
of section 3(4)(b)(ii). He pointed out that in
the said section a
specific link is created between the delay and the ‘good cause’
and stressed that ‘
good
cause for the delay’
is not simply a mechanical matter of cause and effect. The court
needs to decide whether the applicant has proffered
“
acceptable
reasons for nullifying, in whole or at least substantially, any
culpability on his part pertaining to the delay in serving
the notice
timeously”
.
[12]
In my view the applicants in the present case failed to do so. First
of all, there is no ‘full’ explanation which
enables the
Court to assess how the delay really came about. In the so-called
‘chronology’ in the founding affidavit,
only three
specific dates are provided to explain a delay of two-and-a half
years. Although the accident happened on 23 January
2010, the first
specified date is 31 January 2012 when the applicants are said to
have mandated their present attorney of record
to institute action on
their behalf. The second is 26 June 2012 when the said attorney
briefed the ‘trial advocacy
attorney’ to
“
consult
[her] pertaining to the claims”
.
The third is 1 October 2012 and/or 10 October 2012 when a candidate
attorney sent the attorney a telephonic note to inform
her that he
had “phoned SANRAL” to ascertain the identity of the
relevant road authority and had received confirmation
that the Free
State Department of Public Works, Roads and Transport is the said
relevant authority.
[14]
Details of the year that passed between the instructing attorney’s
receipt of a mandate until the section 4(1) letter
was issued in
December 2012 are sketchy, to say the least. The attorney deposed to
the founding affidavit herself. Without providing
any dates or
details, she merely avers that she spent six months to obtain the
listed documents. In ‘
June or July
2012’
she and presumably the
trial attorney held an inspection
in
loco
and a consultation with the
applicants. At some unspecified date she instructed the ‘
trial
attorney’
to ‘
settle
the demands and issue the summons’
.
She offers no explanation for the further delay until December 2014,
except to intimate that it took almost a year to find
out which body
to address the claim to. By 10 October she had the necessary
information, on her version. Yet the letter
was only
served two months later. Once again no information on the reason for
that delay is provided.
[15]
From the applicants themselves there is no explanation other than to
confirm the bald statement in the attorney’s affidavit
that
they had not been aware of their rights in respect of claims against
the respondent; the identity of the respondent and/or
the institution
against which such claims might be instituted; their entitlement to
damages and the evidence required to enforce
such a claim, or whether
they in fact had any enforceable claim against the relevant road
authority. To that effect three
non-committal general
3-paragraph affidavits by the Applicants and the First Applicant’s
mother were annexed to the attorney’s
affidavit.
[16]
The explanations in the affidavits submitted in support of the
application for condonation, in my view distinctly failed to
pass the
second hurdle, namely to provide ‘good cause’ to grant
condonation. Although it is obvious that the
attorney played a
very prominent role in the delay, the extent to which the applicants
might have contributed to the delay is not
explained at all. They
themselves offered no explanation whatsoever for the two years that
passed since the accident. They simply
pleaded complete ignorance.
They did not explain how or when or through whom they then
purportedly became aware of their potential
rights, whether they
immediately took steps to consult an attorney, why two years passed
before they did so, and so forth.
Certainly their explanation
is not ‘full’ enough to enable the Court to evaluate
their contribution, if any, to the
delay.
[17]
The prospects of success on the merits might have an important
bearing on the determination of the existence or not of ‘good
cause’. Exercising a discretion to condone where there is no
prospect of success would be an exercise in futility. Whether
the
merits are shown to be strong or weak, may affect the applicants’
explanation for conduct which led to the delay. It
is hardly likely
that an applicant with an overwhelmingly strong case would be
careless in pursuing his interest, while one with
little hope of
success can easily be understood to drag his heals.
[6]
[18]
In the present application, in my view, therefore there is no
satisfactory or sufficient explanation for the delay of
two-and-a-half
years before the notice was sent out. What
happened between the date of the accident and the instructions to the
attorney
two years later remains a mystery. So, to a significant
extent, does the delay of almost a year from the date of the
attorney’s
first instruction to the filing of the section
3(4)(i) letter of demand. It is highly improbable that the
“
investigative works”
regarding the identity of the respondent and the nature and extent of
the claim against the respondent could in all reasonableness
have
occupied an entire year, especially since the respondent’s
identity could, on the applicants’ own papers, apparently
be
solved by two phone calls by a candidate attorney.
[19]
The deposing attorney maintained that the court should not blame the
applicants for the delay. In the absence of any explanation
for the
apparent two year delay in contacting an attorney, other than
‘ignorance’, the court can certainly not find
that the
appellants used the first available opportunity to “assert
their determination to see justice done”.
[20]
It is true that ignorance, inexperience, naïveté, or a
simple lack of intelligence, individually or in any combination,
could conduce to a reasonable belief that something would happen.
But that requires some pro-active action from the applicants.
In the present matter there is no explanation of what the applicants
did to pursue a possible claim, whether it be against the
Road
Accident Fund, or against the relevant road authority. There is
no allegation that the applicants are of deficient intelligence
or
illiterate, and it is hard to believe that any road user in this
country would not be aware of the possibility of claiming from
somebody or some institution. It is also hard to believe that
anybody would not at least think of approaching an attorney
for
advice as to a possible claim.
[21]
The applicants do not deal with any prospect of success at all.
From the founding affidavit it appears that this was
a single vehicle
accident which occurred on a provincial road which had potholes in
the surface. The first applicant is alleged
to have driven over
or into an invisible pothole. But there is no objective evidence to
that effect: the road in question
has been completely
resurfaced.
[22]
As stated in
Madinda
r
[7]
there are two main elements at play in section 4(b), namely the
applicants’ right to have the merits of the case tried by
a
court of law, but also the right of an organ of state not to be
unduly prejudiced by delay beyond the statutory prescribed limit
for
giving notice. Subsection (iii) requires the court to be
satisfied that there is no such prejudice.
[23]
The complete resurfacing of the road was done before the Defendant
was notified of the present claim. Had the letter of demand
in terms
of Act 40 of 2002 been sent timeously, the Defendant would at least
have had an opportunity to investigate the claim and
inspect the road
surface in the vicinity of the accident before the resurfacing
thereof. In my view the requirement of having
to notify state
organs within six months of any proposed claim for damages was
introduced specifically to prevent this type of
situation where an
organ of state is called upon to meet a claim regarding which it is
unable to objectively verify the circumstances
leading to the claim.
[24]
In my view the applicants failed to meet the third leg of section
3(4)(b) as well, namely that an applicant must satisfy the
court that
the respondent had not been unreasonably prejudiced by the failure to
serve the notice timeously. The requirement of
the existence of
“
unreasonable prejudice
”
rather than simply any level of prejudice, requires a common sense
analysis of the facts, bearing in mind that whether the
grounds of
prejudice exist often lies peculiarly within the knowledge of the
respondent.
[26]
The onus is on an applicant to bring the application within the terms
of the statute, but a court should be slow to assume
prejudice for
which the respondent himself does not lay a basis. In the
present matter the respondent argued that the relevant
road has been
completely resurfaced since the accident, which resurfacing was done
by an external company upon tender, and that
it would be impossible
to obtain objective evidence in order to a properly defend the claim
three years after the accident.
[27]
Counsel for the respondent pointed out that the prejudice in the
present case did not constitute the normal type of prejudice,
such as
witnesses forgetting details, and so forth, but posed a fundamental
problem because any evidence of the accident would
by 2012 have been
totally obliterated. The resurfacing was done, furthermore, by
an independent contractor and not by the
Department itself, which of
course means that the records of the type of work needed and done on
the relevant stretch of road would
have been kept by that company and
not by the Department.
[28]
Counsel for the applicant argued that the Respondent should have
known that the road surface was bad, seeing that it needed
to be
resurfaced, and that it should have kept all records of the condition
of the road surface for possible future litigation.
That could have
been a valid argument if the section 4 notice had been delivered
within the specified time and before the road
was resurfaced.
[29]
On behalf of the applicants it was argued that the fact that the
Department did not keep records of the road condition before
the
resurfacing to meet possible future litigation made it the author of
its own prejudice or misfortune. It was also averred that
for that
reason the late service of the letter was not the cause of any
unreasonable prejudice to the Respondent.
[30]
I do not agree. Had the Applicants complied with their statutory duty
to timeously notify the Respondent of their proposed
claim, the
prejudice would not have occurred. The Respondent’s lack of
access to objective evidence regarding the accident
has in my view
indeed deprived it of its right to put its case properly before the
court.
[31]
Once the court has investigated all the facts, it is in a position to
assess the combined weight to be attributed to the three
elements of
section 3(4)(b)(i), (ii) and (iii) in the context of the discretion
to grant or refuse condonation. In view of their
patent lack of a
sufficiently full explanation for the almost three year delay in
notifying the Respondent of their proposed claim
and the failure to
address the probability of success on the merits, the Applicants in
my view patently failed to establish ‘good
cause’ for
condonation. Furthermore, the prejudice to the Respondent is
undeniable.
[32]
The Supreme Court of Appeal has determined that the structure of
section 3(4) is now such that the court must be satisfied
that
all
three
requirements have been met before it can exercise its discretion to
condone non-compliance with the Act.
[8]
Therefore, in view thereof that the Applicants did not meet the
second and third of the three statutory requirements for
condonation
in terms of section 3(4)(b), the Court is not in a position to
exercise its discretion to grant condonation for the
Applicants’
non-compliance with the requirements of Act 40 of 2002.
WHEREFORE
the following order is made:
The
application for condonation in terms of section 3(4) of the
Institution of Legal Proceedings against Certain Organs of State
Act
40 of 2002 is dismissed with costs.
______________
H.
MURRAY, AJ
On
behalf of the applicants: Mr Piet Uys
Instructed
by:
Yvonne
Kruger Inc
c/o
Matsepes Inc
26/28
Aliwal Street
BLOEMFONTEIN
On
behalf of the defendant: Adv B S M Bedderson
Instructed
by:
The
State Attorney
11
th
Floor Fedsure Building
BLOEMFONTEIN
[1]
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) at para
[6]
at 315
[2]
Madinda
v Minister of Safety and Security
,
supra
,
at para [8] at 316.
[3]
Madinda
v Minister of Safety and Security
,
supra
,
at para [10] at 316.
[4]
1954
(2) SA 345
(A) at 352H – 353A.
[5]
Madinda
v Minister of Safety and Security
,
supra
,
at para [11] at 316.
[6]
Madinda
[7]
Madinda
v Minister of Safety and Security
,
supra
,
at para [12] at 317.
[8]
Madinda
v Minister of Safety and Security,
supra
,
at para [16] at 317.