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[2013] ZAGPPHC 20
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Gauta and Others v Lesedi Local Authority and Others (27292/11) [2013] ZAGPPHC 20 (5 February 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
(REPUBLIC
OF SOUTH AFRICA)
Case
No.: 27292/11
DATE:05/02/2013
In
the matter between:
MOTAUNG
GAUTA
…..........................................................................................
1
st
Plaintiff
BAMBISA
HANDSOP STEPHEN
…................................................................
2nd
Plaintiff
KUBHEKA,
SOMBULUKU
JACOB
.................................................................
3rd
Plaintiff
TSOTETSIMOHLOLO
JOHN
............................................................................
4
th Plaintiff
KWAKE
NONGENILE
..........................................................................................
5th
Plaintiff
NKUTHA
SANGO
VICTOR
.................................................................................
6th Plaintiff
MAKANA
SAMUEL
TJOMUZA
...........................................................................
7th
Plaintiff
MAHLATSI
MOEKETSI
JACOB
........................................................................
8th
Plaintiff
and
LESEDI
LOCAL
AUTHORITY
..........................................................................
1st
Defendant
WOZANI
SECURITY (PTY) LTD
t/a
THE RED
ANTS
….......................................................................................
2nd
Defendant
MINISTER
OF SAFETY AND
SECURITY
......................................................
3
rd Defendant
JUDGMENT
MNGQIBISA-THUSIJ:
[1
] The plaintiffs are seeking the following relief:
1.1
that condonation be granted in terras of section 3(4) of the
Institution of Legal Proceedings against certain Organs of State
Act
40 of 2002 (“the Act”), for the late service of its
notice, dated 12 May 2011, on the South African Police Service
(“the
third defendant”);
1.2
that condonation be granted in terms of the provisions of section
3(4) of the Act for the service of the plaintiffs’ summons
prior to the expiry of a period of 30 days after service of the
notice as required by section 5(2) of the Act;
1.3
that condonation be granted in terms of section 3(4) of the Act for
the late service of the plaintiffs’ notices, dated
12 November
2009 and 27 September 2010, on the Lesedi Local Municipality ((“the
first defendant”);
1.4
a cost order against any opposition.
[2]
The notices for which condonation is sought were issued in
contemplation of an action for damages (“the main action")
instituted by the plaintiffs against the defendants as a result of
alleged incidents which occurred in Ratanda township on 19 May
2008.
The notices in question were issued on 12 November 2009 and 27
September 2010 on behalf of the second, third and fourth plaintiffs;
and on behalf of the first and fifth plaintiffs, respectively
and
on the third defendant on 12 May 2011 in respect to all the
plaintiffs.
[3]
At the time summons were issued the first and third respondents had
not responded to the notices. Further, when this application
was
launched, the first defendant had not entered appearance to defend
the action.
[4]
The first defendant entered its notice to defend the main action on
30 September 2011 and filed its plea on 4 November 2011.
The third
defendant filed its plea on 25 August 2011.
[5]
In their pleas in the main action, the first and third defendants
have raised the failure of the plaintiffs to issue notices
contemplated in section 3 of the Act within the prescribed time limit
and the failure by some of the plaintiffs to issue the notices,
as a
defence. As a result of the objection raised by the first and third
defendants to the main action, the plaintiffs launched
these
proceedings under section 3(4) of the Act.
[6]
The first defendant is opposing the application for condonation.
Third defendant did not file a notice to oppose. Consequently
relief
sought against the third respondent in these proceedings is granted.
[7]
The issues to be determined relate only to the first defendant.
[8]
Section 3(1) read with 3(2)(a) of the Act provides that a creditor
who intends recovering a debt from an organ of state must
give the
organ of state written notice of its intention to institute
proceedings against it within 6 months of the date on which
the
incident giving rise to the claim occurred. Further, the said notice
must set out the circumstances giving rise to the claim
and
particulars which are within the knowledge of the creditor.
[9]
In terms of section 3(4) of the Act, if an organ of state relies on
the creditor’s failure to serve the prescribed notice
or has
issued a defective notice, the creditor may apply to court for an
order condoning such non-compliance. The court will grant
condonation
if it is satisfied that:
6.1
the debt has not been extinguished by prescription;
6.2
good cause exists for the failure by the creditor; and
6.3
the organ of state was not unreasonably prejudiced by the failure.
[10]
In Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA)
the court held at paragraph 12 that:
“’
Good
cause’ looks at all those factors which bear on the fairness of
granting relief as between the parties and as affecting
the proper
administration of justice. In any given factual complex it may be
that only some of many such possible factors become
relevant. These
may include 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.”
[11]
The plaintiffs allege on 19 May 2008 as members of the South African
Municipal Workers Union (SAMWU) and while in the employ
of the first
defendant, were, together with other members involved in a legal
strike when confronted by employees of the second
defendant, known as
the Red Ants, who were subcontracted by the first defendant. It is
alleged that the Red Ants tried to disperse
the strikers; skirmishes
ensued resulting in the Red Ants assaulting the strikers using
various weapons and shooting some of the
strikers. As a result a
number of strikers were injured and three people died.
[12]
As a result of the injuries and the deaths, SAMWU instructed its
attorneys to file claims against the defendants for the damage
suffered as a result of the alleged unlawful assaults and shootings
allegedly committed by the Red Ants.
[13]
It is common cause that:
10.1
the plaintiffs action had not prescribed by the time summons were
issued on 13 May 2011.
10.2
the section 3 notices served on the first defendant on behalf of the
second, third and fourth plaintiffs; and on behalf of
the first and
fifth plaintiffs on 12 November 2009 and 27 September 2010,
respectively, were issued after the 6 months period prescribed
in
section 3(2) of the Act had expired.
10.3
no notices were issued on behalf of the sixth to eighth plaintiff in
contemplation of the action instituted.
[14]
In view of the fact that the notices on behalf of the first to fifth
plaintiffs were issued out of time and that no notices
were issued on
behalf of the sixth to eighth plaintiffs, the issue to be determined
is whether the plaintiffs have satisfied this
court that there is
good cause for the failure to comply and that such failure to comply
is not unreasonably prejudicial to the
first and third defendants.
[15]
The following submissions were made on behalf of the plaintiffs. As
it was agreed between the attorneys and SAMWU that action
will be
brought only on behalf of those strikers who were seriously injured
and those who had died, it was necessary for the attorneys
and
SAMWU to first identify who the plaintiffs would be. To achieve this
it was necessary for the injured strikers to consult with
medical
practitioners in order to ascertain the seriousness of their
injuries. Appointments for consultation with medical doctors
could
only be obtained several months later. In addition it became
necessary for some of the injured to consult with medical
specialists.
It was only after the medical reports, received during
August-September 2009, were the attorneys able to identify the
plaintiffs.
After the reports were received the notices in terms of
section 3 were then prepared in October 2009. Counsel argued that
without
determining who the actual plaintiffs were, the notices would
have been vague. It was farther submitted that at that stage it was
not clear whether action should be instituted also against the third
respondent. It was only after further investigations were
done with
regard to the involvement of members of the third defendant and on
advice of counsel that a section 3(1) notice was prepared
and served
on the third defendant on 12 May 2011 on behalf of all the
plaintiffs.
[16]
It was further submitted that no notices were issued on behalf of the
sixth to eighth plaintiffs because SAMWU only instructed
the
attorneys a few days before summons were issued to include them as
plaintiffs.
[17]
Counsel for the plaintiffs further argued that there was good cause
shown for the failure in that the delay in issuing the
notices,
although long, was reasonable in view of the investigations which had
to be done before it was clear who the plaintiffs
were and that there
are prospects that the plaintiffs would succeed in their action
against the defendants. Furthermore, counsel
argued that the failure
to comply with section 3 did not cause the defendants unreasonable
prejudice in that the defendants knew
about the incident and the
first defendant has only denied that the Red Ants were in their
employ whereas the third defendant alleges
that its members appeared
on the scene only after the incident. Furthermore it was argued that
the first defendant has not pleaded
that due to the time lapse it
would not be able to investigate the incident.
[18]
On behalf of the first defendant it was argued that the delay in
issuing the notices was inordinately long and the plaintiffs
had not
sufficiently explained the delay. It was further submitted that the
plaintiffs were barred from bringing the damages claim
in that in
terms of a settlement agreement concluded at the time between SAMWU
and the first defendant, a reconciliation committee
had been set up
to deal with all disputes relating to the strike and that all issues
relating to the strike had been finally resolved,
including
compensation for injuries suffered by some of the strikers. It is
counsel’s contention that the plaintiffs have
not given a
reasonable and acceptable explanation for the delay. Further, it is
the contention of the first defendant that the
plaintiffs’
attorneys should be held liable for the failure to comply. Counsel
submitted that if this application is dismissed
it is not the end of
the road for the plaintiffs since it is open to the plaintiffs to
submit a claim to the Fidelity Guarantee
Fund based on their
attorneys’ negligence. Furthermore, it is counsel’s
contention that the plaintiffs case has no
prospect of success in
that the plaintiffs have not established a link between the first
defendant and the second defendant. It
is the first defendant’s
contention that the second defendant was only sub-contracted to clean
up the township. Counsel did
not, however, address this court on any
unreasonable prejudice caused by the failure by the plaintiffs to
comply with section 3
of the Act.
[19]
In Minister of Safety and Security v De Witt 2009(1) SA 457 (SCA) the
court held that condonation for non-compliance could
be granted where
no notice has been given or where the notice is defective in some
respect but proceedings instituted before the
expiry of the
prescription period. The court further stated that the purpose of
condonation is to allow the action to proceed despite
the fact that
the peremptory provisions of section 3(1) have not been complied
with.
[20]
I am satisfied that the plaintiffs have shown sufficient cause for
the granting of condonation. The delay in the issuing of
the notices
has been fully explained. Even if the delay in the issuing of the
notices was as a result of the plaintiffs’
attorneys, the
plaintiffs should not be held accountable for such laxity, if there
was any, to the extent that the plaintiffs would
be denied their
right of access to the court. The fact that some of the notices were
not issued, is not a bar to the court exercising
its discretion in
favour of granting condonation to the plaintiffs. I am of the view
that in fairness to both parties, condonation
should be granted as
prayed for. There is no evidence shown that such condonation would
cause unreasonable prejudice to the defendants.
[21]
Even though the plaintiffs are seeking an indulgence, the conduct of
the first defendant warrants the plaintiffs to be awarded
costs. With
regard to costs, the plaintiffs are also entitled to the wasted costs
occasioned by the removal of this matter from
the unopposed roll and
its postponement on 29 November 2011 due to the first defendant
giving notice of its intention to oppose
this application 7 days
before the hearing even though the application was served on
it
on 2 June 2011.
[22]
Accordingly the following order is made:
1.
Condonation is granted in terms of section 3(4) of the Institution of
Legal Proceedings against certain Organs of State Act 40
of 2002
(“the Act”), for the late service of the plaintiffs’
notice, dated 12 May 2011, on the South African
Police Service;
2.
Condonation is granted in terms of the provisions of section 3(4) of
the Act for the service of the plaintiffs’ summons
prior to the
expiry of a period of 30 days after service of the notice as required
by section 5(2) of the Act;
3.
Condonation be granted in terms of section 3(4) of the Act for the
late service of the plaintiffs’ notices, dated 12 November
2009
and 27 September 2010, on the Lesedi Local Municipality.
4.
The first defendant to pay the wasted costs of 29 November 2011.
5.
The fist defendant to pay the costs of this application.
N.
P. MNGQIBISA-THUSI
JUDGE
OF THE HIGH COURT