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
>>
2012
>>
[2012] ZAFSHC 185
|
|
Van De Venter v MEC of Education: Free State Province (3545/2010) [2012] ZAFSHC 185 (4 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 3545/2010
In
the matter between:
SUSAN SHARON VAN DE
VENTER
.......................................
Applicant
and
THE
MEC OF EDUCATION: FREE STATE
PROVINCE
...........................................................................
Respondent
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
6
SEPTEMBER 2012
_____________________________________________________
DELIVERED ON:
4 OCTOBER 2012
_____________________________________________________
[1] The matter came to
court by way of motion proceedings. The applicant applies to have her
failure to comply with a certain statutory
provision condoned. The
applicant has, prior to this application, instituted proceedings
against the respondent. In her main action
against the respondent she
claimed general damages and special damages in the total sum of R576
814,93. The action is defended.
The application is vigorously
opposed.
[2] The applicant averred
in her founding affidavit that she was a victim of an armed robbery
which took place at Navalsig High
School, Andries Pretorius Street,
Navalsig in Bloemfontein on 20 July 2007. It was her case that she
was physically assaulted and
bodily injured by the robbers during the
course of the incident.
[3] At the time of the
incident the applicant was in the employ of the respondent. She was
an administrative clerk at the aforesaid
public school. She was
officially on duty at the time of the incident. The respondent was
responsible for the safe working conditions
and safe working
environment of the employees of the department within certain bounds.
The applicant resumed her work on the 3
rd
October 2007. On
2 November 2007 the applicant addressed a letter of demand (annexure
“b”) to the principal.
[4] On the 7
th
June 2010 the applicant, through her attorney, notified the
respondent about the incident, her total claim of R576 844.93, her
demand for payment and the grounds on which her claim against the
respondent was based (annexure “a”).
[5] On 19 July 2010 the
applicant caused a summons to be issued against the respondent. On
the same day the sheriff served the summons
upon the State Attorney,
Bloemfontein. The action is defended as I have already said. The
respondent specifically pleaded, in the
main action, that the
applicant’s claim had since become unenforceable on account of
her failure to comply with the express
statutory provisions of
section 3. The respondent ignored the applicant’s request of
the 7
June 2010 that the applicant’s non-compliance
be condoned.
[6] The respondent’s
stance necessitated the launch of the current interlocutory
application. In her founding affidavit the
applicant gave reasons for
her delay. The one reason she gave was that she did not know that she
had to give prior notice of her
intention to institute legal
proceedings against the respondent. The other reason, she said, was
that she was busy quantifying
her claim. She believe that she had
given good explanation for her delay.
[7] In the answering
affidavit the respondent denied some of the applicant’s
allegations. The respondent’s deponent,
Mr M J Merabe, denied
that the applicant’s allegations were all true and correct. The
respondent denied that the applicant
was injured during the course of
the robbery and that she subsequently suffered damages as she
alleged. The respondent answered
that the applicant was required to
provide proof that she was injured as alleged; that she was
hospitalised; that she even received
medical treatment as well as
nursing for some time in the intensive care unit; that she
subsequently received psychological counselling
and that she suffered
severe psychological sequelae.
[8] The respondent denied
the suggestion that the principal’s letter (annexure “c”)
addressed to the respondent’s
department of education could be
equated to the written notice as envisaged by the relevant statutory
provisions. The respondent
acknowledged that there was an exchange of
correspondence between the school and the compensation commissioner’s
office in
connection with the applicants (vide annexure “d”)
but averred that such correspondence was in keeping with a statutory
process in terms of section 35 of Compensation for Occupational
Deceases and Injuries Act 130/1993. The respondents specifically
denied the applicant’s assertion that besides her compensatory
claim in terms of section, she also had an additional common
law
remedy to delictually sue the respondent as her employer. The
respondent’s stressed that there was only one process in
respect of the applicant’s occupational claim for compensation
and that such process was already on track at the time the
applicant
consulted her attorney who advised her of an alleged alternative or
supplementary claim for delictual damages (annexure
“e”).
[9] The respondent denied
the applicant’s allegations: that her non-compliance was not
occasioned by gross negligence; that
it was her intention, throughout
the entire critical period, to sue the respondent for the recovery of
delictual damages; that
the purpose of the legislation has not been
defeated; that the respondent was notified of the applicant’s
intention to institute
her action or claim within six months; that
the requisite notice was served on the respondent by way of annexure
“a”
and annexure “b”, that the respondent was
not at all prejudiced by the applicant’s failure to strictly
comply
with the statutory provision; that the applicant has good
prospects of success on the substantive merits of her main action;
that
section
35, Act 130/1993
does not apply to the applicant or that
she had given acceptable and satisfactory explanation for her failure
to comply.
[10] In her replying
affidavit the applicant repeated that the averments of her founding
affidavit were true and correct. She asserted
that the injuries that
were inflicted upon her during the robbery incident, as more fully
set out in her particulars of claim attached
to her summons, resorted
within the cader of situations where an employer can be civilly held
responsible and liable for an employee’s
delictual damages. She
replied that she outlined full and valid reasons for her
non-compliance in her founding affidavit. She added
emotional
depression as one more reason. She denied that her delay in bringing
this application showed
mala fides
on her part. The applicant
admitted that, no employee has ever successfully sued her employer
since the particular legislation
was enacted.
[11] It was common cause
that the respondent’s provincial department was an organ of the
state. As such, the respondent was
entitled to be given written
notice in terms of section
3, Act 40/2002
within six months from the
date on which the applicant’s cause of action arose.
[12] The main issue in
the case was whether good cause existed to condone the applicant’s
failure to comply with the relevant
statutory provision or not.
[13] On the one hand Mr
Buys, counsel for the applicants, submitted that a proper case had
been made out to justify an affirmative
answer to the question in the
case. On the other hand, Mr Mene, counsel for the respondents
submitted that no proper case had been
made out at all and that the
answer to the question must be in the negative.
[14] Perhaps it is
necessary to give an overview of the applicable principles of law.
The applicant applies in terms of section
3(4)(a) of the Institution
of Legal Proceedings Against Certain Organs of State, Act 40/2002
since she had fallen foul of subsection
(1) which precludes anyone
from instituting legal proceedings against an organ of state unless
such claimant had given written
notice of intention to do so. Such
notice has to be given within six months from the date on which the
alleged cause of action
arose – subsection (2).
[15] Since the respondent
implicitly declined to condone the applicant’s belated notice,
her only option was to bring an application
to court in terms of
subsection 4(a). Her special condonation application maybe granted
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 –
vide subsection 4(b). These requirements have
to be conjunctively
established by the applicant. I shall revert to those cornerstones of
this sort of a special condonation application
in due course.
[16] The correct approach
to a condonation application in terms of section 3(4)(a) was
authoritatively laid down in
MADINDA v MINISTER OF SAFETY AND
SECURITY
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) 316 par [8] per Heher JA:
“
[8] The
phrase ‘if [the court] is satisfied’ in s 3(4)(b) has
long been recognised as setting a standard which is not
proof on a
balance of probability.
Rather
it is the overall impression made on a court which brings a fair mind
to the facts set up by the parties.
See eg
Die
Afrikaanse Pers Beperk v Neser
1948
(2) SA 295
(C) at 297. I see no reason to place a stricter
construction on it in the present context.”
[17] The section makes it
perfectly clear that suing an organ of state is a different ball-game
as compared to suing a private or
corporate
persona
. There are
special ground rules. An extra-ordinary procedure is prescribed. It
has to be strictly followed. There are special rules
that stipulate
time frames.
[18] The late Didcott J
once remarked:
[9] An insistence
on notices of the kind required by section 113(1) is by no means
peculiar to the particular proceedings that it
governs. Similar
conditions precedent to the institution of actions are and have long
been familiar features of our statutory terrain,
especially the part
occupied by departments of state, provincial administrations and
local authorities once they become prospective
defendants.
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.
”
MOHLOMI v MINISTER
OF DEFENCE
1996 (2) BCLR 1559
(CC) para [9] at 1563E –
G.
[19] Those then are the
cardinal underlying reasons that seeks to explain why notices such as
the one envisage in section 3 have
been enacted by the national
parliament. In the case of
MINISTER OF SAFETY AND SECURITY v DE
WITT
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA), Lewis JA outlined the rationale
of section
3, Act 40/2002.
At par [1] the learned judge said:
“
[1] This
appeal turns on the interpretation of
s 3
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
. The Act
was introduced to harmonize periods of prescription of debts owed by
organs of state, and to make provision for a uniform
requirement for
the giving of notice in connection with the institution of legal
proceedings. It repealed several statutes that
had previously
regulated proceedings against various state bodies such as the police
and the defence force. And it came after a
decision in the
Constitutional Court –
Mohlomi
v Minister of Defence
- in which it was held that s 113(1) of the Defence Act was
unconstitutional since it made no allowance for failure timeously to
notify the defence force of the intention to sue it, despite the
circumstances.”
[20] At par [2] she went
on to add:
“
[2] 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 organizations that need to keep
their affairs in order are regulated.”
Now I proceed to examine
the factual matrix in order to consider the requirements.
[21]
In the first
place a court which is called upon to consider this sort of a special
condonation application has to be satisfied that
the alleged debt or
claim has not been extinguished by prescription – vide
subsection 3(4)(b)(i).
[22] In terms of section
3(a) Prescription Act 68/1969 a claimant’s claim prescribes
three years after the underlying cause
of action has arisen. In this
instance, the prescriptive period of the applicant’s claim was
supposed to run until midnight
on 19 July 2010. The contrary was not
contended on behalf of the respondent.
[23] It was not in issue
that the applicant’s cause of action arose on 20 July 2007 and
that her summons was issued and served
on the 19 July 2010. The
service was expected on the very last day of the permissible 3 year
prescriptive period. The sheriff served
the summons a few hours only
before the applicant’s claim was due to be extinguished by
prescription.
[24] In
casu
the
first statutory requirement speaks for itself. On the undisputed
facts, this statutory requirement needs not detain me any
longer. Her
claim was salvaged on the verge of extinctive prescription.
Accordingly I am satisfied that she relied on an extant
cause of
action at the time she moved this special condonation application.
That that was so in the instant matter has never been
disputed. This
disposes of the first leg of the inquiry.
[25]
In the second
place the court may grant the special condonation application if it
is satisfied that good cause exists for the failure
by the creditor
to give the required statutory notice – vide section
3(4)(b)(ii).
[26] In the case of
MADINDA v MINISTER OF SAFETY AND SECUITY
[2008] ZASCA 34
;
2008 (4) SA
312
(SCA) par [10] Heher JA had this to say about the legal notion of
‘good cause’, a practically synonymous expression
to the
legal notion of ‘sufficient cause’:
“
[10] The
second requirement is a variant of one well known in cases of
procedural non-compliance. See
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996
(1) SA 215
(W) at 227I-228F and the cases there cited. ‘Good
cause’ looks at all those factors which bear on the fairness of
granting
the 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.”
[27] The second statutory
requirement is a specific factor distinct from the other two
prescribed minimum elements of satisfaction
a court is required to
have before the procedural non-compliance complained of may be
condoned. One of the significant facets embraced
by the broad
spectrum termed good cause, concerns prospects of success in the
contemplated main action. To that particular facet
I shall shortly
turn.
[28] The respondent took
the battle to the applicant on two of the three specific fronts,
namely: the specific element of good cause
for the applicant’s
omission and the specific element of unreasonable prejudice to the
respondent’s interest. Notwithstanding
those specific fronts of
the attack, it seemed to me that the respondent’s primary
contention in opposition of the applicant’s
special condonation
application was to the effect that however valid the reason for the
omission might have been, however sufficient
explanation offered
might have been, however honest the applicant’s
bona fides
might have been, however little any negligent contribution by the
thirds to the delay might have been, and however minimal the
applicant’s responsibility thereto might have been – the
special condonation application should be refused since the
proposed
action for delictual damages has not, never had and would never have
any prospects of success.
[29] I found the
following conjunctive analysis of subsection 4(b) instructive:
“
According to
counsel’s submission, no matter how strong an applicant’s
case on the merits that consideration cannot
be causally tied to the
reasons for the delay; the effect is that the merits can be taken
into account only if and when the court
has been satisfied and comes
to exercising the discretion to condone. I do not agree. ‘Good
cause for the delay’ is
not simply a mechanical matter of cause
and effect. The court must decide whether the applicant has produced
acceptable reasons
for nullifying, in whole, or at least
substantially, any culpability on his or her part which attaches to
the delay in serving
the notice timeously. Strong merits may mitigate
fault; no merits may render mitigation pointless.”
MADINDA’S
case
supra
, para [12] at 317A – B.
[30] The learned judge
continued to say the following about the substantive merits of the
proposed action and I am in respectful
agreement.
“
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. Subparagraph (iii) calls for the court to
be
satisfied as to the latter. Logically, subparagraph (ii) is directed,
at least in part, to whether the subject should be denied
a trial on
the merits. If it were not so, consideration of prospects of success
could be entirely excluded from the equation on
the ground that
failure to satisfy the court of the existence of good cause precluded
the court from exercising its discretion
to condone. That would
require an unbalanced approach to the two elements and could hardly
favour the interests of justice.”
MADINDA’S
case
supra
,
para [12] at 317C.
[31] As regards the
ultimate discretion of the court to condone despite failure, Heher JA
commented:
“
Moreover,
what can be achieved by putting the court to the task of exercising a
discretion to condone if there is no prospect of
success? In
addition, that the merits are shown to be strong or weak may colour
an applicant’s explanation for conduct which
bears on the
delay: an applicant with an overwhelming case is hardly likely to be
careless in pursuing his or her interest, while
one with little hope
of success can easily be understood to drag his or her heels. As I
interpret the requirement of good cause
for the delay, the prospects
of success are a relevant consideration.”
MADINDA v MINISTER
OF SAFETY AND SECUITY
supra
, par [10] on 317E –
G.
[32] On the one hand Mr
Mene submitted that the applicant’s proposed main action had no
prospects of success in view of the
provisions of section 35 of the
Compensation for Occupational Deceases and Injuries Act, 130/1993.
On the other hand, Mr
Buys submitted that section 35, Act No 130/1993 did not apply
because, as counsel saw things, the facts were
unique. Accordingly,
counsel submitted that the proposed action has reasonable prospects
of success.
[33] I deem it prudent to
quote verbatim section 35 Act No 130/1993 as amended. It reads as
follows:
“
1) No
action shall lie by an employee or any dependant of an employee for
recovery
of damages in respect of any occupational injury or disease
resulting in the disablement or death of such employee against such
employee's employer, and no liability for compensation on the part of
such employer shall arise save under the provisions of this
Act in
respect of such disablement or death.
2) For
the purposes of subsection (1) a person referred to in
section
56(1)(b), (c), (d) and (e)
shall be deemed to be an employer.”
[34] The applicant was in
the employ of the respondent at all times material to the current
dispute. She was engaged as an administrative
clerk at one of the
public schools falling within the respondent’s jurisdiction.
For all practical intents and purposes,
she was a kind of a cashier
at Navalsig High School, Andries Pretorius Street in Bloemfontein. On
20 July 2007 she was on duty
at school. While she was performing her
official duties as such, her school was infiltrated by armed robbers.
The finance office,
which was the applicant’s work station, was
under attack. During that attack she was injured.
[35] I accept that
subsequent to the robbery incident the applicant was rushed to the
hospital and that she was hospitalised for
some time. She resumed
work on the 30 August 2007. It has to be accepted that the applicant
set up a prima facie case of assault
by the robbers. In due course
she completed a prescribed claim form and lodged her occupational
claim with the compensation commissioner
in terms of section
35 Act
130
of 1993 – vide annexure “d”.
[36] In a case where a
public school as an employer would not have been liable to an injured
employee by virtue of the provisions
of section 35 of the
Compensation for Occupational Injuries and Deceases Act, 130 of 1993,
so too a respondent organ of the state
would not have been liable to
such an injured employee. The particular legislation provides for
compensation as a special remedy
for employees injured in whatever
circumstances. The crux of the matter is that section 35 expressly
precludes an injured employee
from holding her employer delictually
liable and suing such employer for the recovery of delictual damages
in respect of any occupational
injury. The respondent’s special
plea to the applicant’s summons appeared to have prospects of
success – vide
MEC FOR EDUCATION, WCP v STRAUSS
2008 (2) SA 366
(SCA) par [15] per Malan AJA, as he then was.
[37] In the instant
matter the factual complex, though not identical with that in the
STRAUSS
-case
supra
, it was nonetheless pretty
much the same. The question of law was, more or less, the same here
as it was there. The conclusion,
therefore, has to be the same now as
then. In that case the court held that an injury sustained by an
educator during the course
of an educational activity fell under an
occupational injury. Accordingly the injured educator’s
delictual claim against
the defending organ of state was dismissed on
appeal.
[38] In the instant
matter, therefore, the conclusion has to be the same. Since the
school was not liable in delict to the applicant
as the plaintiff,
the respondent as the defendant and an organ of state could not be
held liable in delict to its own injured employee.
Since section
35(1) came into operation the common law right of an injured employee
to sue an employer has been abrogated. Such
delictual liability can
no longer be attributed to an injured employees’ employer in
any circumstances whatsoever.
[39] In
SKORBINSKI
v BEZUIDENHOUT t/a D B TRANSPORT
2009 (5) SA 463
(TPD) par
[4] Chetty J held as follows about an employee who, as in this
instance, sued his employer:
“
Whatever
delay there may have been thereanent does not transform the
plaintiff's claim into a delictual one entitling him to institute
an action for damages under the common law. The plaintiff's remedy
was to seek compensation pursuant to the machinery created by
the
Act. The injury sustained to his hand was and remains an occupational
injury in terms thereof. As adumbrated earlier, s 35(1)
of the Act
precludes an employee from claiming damages from his employer
in respect of such an injury.”
[40] Occupational injury
is defined as “personal injury sustained as a result of an
accident” – section 1. The
same section defines the word
accident as “an accident arising out of and in the course of an
employee’s employment
and resulting in a personal injury. There
is no magic in any of the two definitions. The crux of both
definitions is to be found
in the words personal injury. The injury
which the applicant sustained during the course of the robbery was
and remains an occupational
injury. It seemed to be of little moment
whether a particular injury was causatively brought about by a
criminal act or not. The
provisions of the particular legislation
have to be generously construed in favour of employees. Whether doing
so is good or bad
remains a debate for another day.
[41] It follows,
therefore, that any personal injury sustained by an employee caused
by any criminal act arising out of and during
the course of an
employee’s employment amounts to an accident as defined in
section 1.
URQUHART v COMPENSATION COMMISSIONER
2006
(1) SA 75
(ECD) per Jones J.
[42] In our law,
therefore, an employee who sustains a compensatable injury or
personal injury or occupational injury as envisaged
in section 3(1)
COIDA 130/1993 is legislatively barred from claiming further
compensation in delict, by way of common law action,
from her
employer, on the ground that her employer had breached a duty to
provide her with a safe working environment and on the
ground that
her criminal assault rendered her personal injury so unique that it
fell outside the cadre of occupational injury.
MANKAYI v ANGLOGOLD
ASHANTI
2010 (5) SA 137
(SCA) para [36] per Malan JA.
[43] I do not wish to
labour the point any longer. The same question of law has previously
arisen in a number of decisions. Time
after time the legal position
has been re-affirmed – vide among others:
JOOSTE v
SUPERMARKET TRADING (PTY) LTD
(Minister of Labour
Intervening)
1999 (2) SA 1
(CC) paras [10] and [14],
MANKYAYI v
ANGLOGOLD
2010 (5) SA 137
(SCA),
SANAN v ESKOM HOLDINGS
LTD
2010 (6) SA 638
(GSJ).
[44] On the strength of
decided caselaw, I am persuaded that the proposed action has no
prospects of success. The facts did not
give rise to a novel
situation. The fact that the applicant was injured by criminal
outsiders and not by fellow employees made
no difference. A few
litigants have previously travelled down that same route before and
all of them ended nowhere. I am certain
that the applicant’s
proposed action would probably be found seriously wanting.
[45] Even if it were
accepted in favour of the applicant that the respondent had
wrongfully neglected to ensure that the applicant
was employed in a
reasonably safe environment, I could find nothing so substantively
inspiring in the alleged passive omission
on the part of the
respondent to impel me or any other court to override the statutory
exemption created in favour of the employer.
The ambit, rationale and
the validity of section 35 has long been confirmed by the
Constitutional Court – vide
JOOSTE’S
case
supra
. Therefore, I have come to the conclusion that the
applicant is precluded in terms of section 35 from instituting a
delictual claim
against the respondent.
[46] Having reached that
conclusion, I now want to approach the matter from another angle.
Accepting, in favour of the applicant,
that my aforegoing conclusion
was wrong and that section 35, Act No 130/1993 was not applicable
then the omission rule becomes
operative.
[47] The applicant was
harmed by some unidentified robbers. There was virtually nothing
special in the relationship between those
criminal wrongdoers and the
respondent. The relationship which existed between them and the
respondent was the same kind of ordinary
relationship which generally
existed between the respondent and any other member of the general
public. The primary public duty
of the respondent was to see to it
that the learners were educated. Doing so, was the respondent’s
constitutional imperative.
[48] The respondent
frankly admitted that it was responsible, within reasonable bounds,
for the safe working conditions and safe
working environment of its
employees at schools. However, such responsibility must not be
equated to the public duty to maintain
law and order. The latter is
the constitutional imperative of another organ of state and not the
respondent. But even the police
as agents of the department of safety
and security, whose responsibility it is to maintain law and order,
by combating crime, are
not constitutionally required to perform the
preventative police duties perfectly or to function perfectly or to
guarantee absolute
safety and security to any member of the general
public. The constitution created no special relationship in a vacuum
between an
organ of the state, such as the respondent on the one
hand, and any particular individual, such as the criminal wrongdoers
who
inflicted injuries upon the applicant, on the other hand –
vide
SAAIMAN’S AND OTHERS v MINISTER OF SAFETY AND
SECURITY AND ANOTHER
2003 (3) SA 490
(OFS) para [14] at 506E
– G.
[49] The crux of the
matter was that the applicant, as the school cashier, was not a
unique victim of crime. The risk of crime,
it was held in
SAAIMAN’S
– case
supra
para [18], was shared by all the members of
the general public, be they on a public road as in that decision or
at a public school
as in this matter. The incidence of crime in
general and armed robbery in particular was not a unique and
particular risk which
exclusively affected the public school
cashiers. Accordingly, public school cashiers cannot be singled out,
because of their supposed
high vulnerability to armed robberies, as a
preferential breed of cash-handlers entitled to special safety and
security measures
provided at the state expense. It cannot be
convincingly argued that at the time the applicant accepted her
appointment as a cashier
at the school she had any legitimate
expectation that she would be completely insulated from crime.
[50] As I saw it, nothing
extra-ordinary emerged from the peculiar circumstances of this
particular matter to evoke the legal convictions
of the community to
demand that, on the facts, the respondent owed an absolute duty of
care to the particular victim of crime,
in other words, the
applicant. In my view nothing compellingly suggested that the
community was convinced that the police, let
alone the member of the
executive council responsible for education, could and should have
prevented the crime and the related
injury to the applicant. The
relationship between the actual wrongdoer and the passive respondent
was too remote to create any
particular control authority.
[51] The undisputed case
of the respondent was: that the school premises were securely fenced
off; that there was a security gate
erected at the entrance; that
there was a security guard deployed at the gate; and that the finance
office allocated to the applicant
as her workstation was secured by
means of a wooden door, a steel security gate and a panic button. It
was common cause that the
applicant herself breached some of those
protective security measures. She neglected to lock the security gate
and the door through
which the robbers gained access into her office.
[52] The respondent, and
indeed the state as a whole, would probably have no adequate
resources to deploy two or so heavily armed
police at each and every
school in the country in general or in this province in particular in
order to eradicate or prevent school
robberies. The applicant hardly
proposed any positive measures which, if implemented, would
absolutely have prevented the robbery
and her injury. As already
pointed out, the school cashiers were not the only victims of crime.
The applicant did not venture to
say on what principled
constitutional and defensible basis other vulnerable groups such as
post office employees or even bank tellers,
who were often targeted
victims should be denied similar protection at state expens -
SAAIMAN’S
– case
supra
.
[53] Accordingly I have
come to the conclusion that, even if section 35, Act No 130/1993 did
not apply, the proposed main action
would still have no prospects of
success, to mitigate her unsatisfactory explanation and culpability
as a whole.
[54] Let me fleetingly
remark about another facet of the notion of ‘good cause’
– the reasons for the delay. The
merits of the proposed main
action have been shown to be hopelessly weak. The weakness of the
substantive merits adversely coloured
the applicant’s
explanation for the delay. It was correctly observed by Hefer JA in
MADINDA’S
-case
supra
at 317F – G
that an applicant with little hope of success can easily be
understood to carelessly drag her heels. On the contrary,
an
applicant with an overwhelmingly strong case on the merits always
acts vigilantly in pursuing her interest. Therefore, in considering
the applicant’s reasons for the delay as a facet of the broad
notion of ‘good cause’, consideration of the prospects
of
success, remains a critically relevant connective tissue between the
special condonation application and the proposed main action.
[55] I have chosen to
deal with only two of the most relevant factors that underpin the
notion of ‘good cause’. I did
not ignore the rest. In
this matter the prospects of success in the proposed main action and
the reason for the delay, stood out
above the rest as the most
decisive:
“
In any given
factual complex it may be that only some of many such possible
factors become relevant.”
MADINDA’S
-case
supra
at para [10] per Heher JA.
That disposes my
consideration of the second specific requirement of subsection
4(b)(ii).
[56]
In the third
place the court may grant a special condonation application if it is
satisfied that an organ of state was not unreasonably
prejudiced by
the failure – subsection 4(b)(iii).
[57] The respondent is
obliged by the aforesaid statute to contribute certain mandatory
levies to the coffers of the compensation
fund under the department
of labour to cover itself, its employees and their dependants. Since
an employee’s common law right
to claim delictual damages from
an employer has been taken away by statute, the respondent will be
seriously and unreasonably prejudiced
if the current special
condonation application is granted thereby calling upon the
respondent to defend, at huge legal costs, an
action which is
destined to fail in any event. Now if the proposed main action has
virtually no prospect of success it becomes
fair and equitable to
halt the wheels of justice here and now.
[58] Bringing a fair mind
to bear upon the facts set up by the parties in the current
proceedings, induces an overall objective
impression that dictates of
justice between the parties compel the conclusion that the applicant
dismally failed to meet two of
the specific requirements of section
4(b) -
MADINDA’S
-case
supra
, para [8]. I
am not satisfied that she is entitled to the relief in terms of
subsection 4(a). However, the enquiry does not end
here.
[59] I turn now to a new
aspect. It is clear that subsection (4) gives the court a discretion
to condone non-compliance subject
to three specific requirements as
discussed above. At this juncture, the question is whether there is
any compelling reason to
rescue the applicant’s boat which is
now in distress and let her proposed main action proceed to trial in
due course?
[60] The purpose of the
special condonation application in terms of section 3(4) is to allow
the proposed main action to proceed
despite the fact that the
peremptory provisions of section 3(1) have not been complied with. To
suggest that, once it is shown
that one of the three specific
requirements of satisfaction has not been met, the special
condonation application should, on that
ground alone fail, cannot be
correct. Such mechanical application or rather construction of the
section would undermine and erode
the discretion of the court –
MINISTER OF SAFETY AND SECURITY v DE WITT
supra
,
para [10].
[61] There are no hard
and fast rules which govern the exercise of discretionary power other
than that such power has to be properly
and judiciously exercised.
One’s natural inclination is to exercise such power in favour
of an applicant in a case where
all or the majority of the specific
requirements have been established if, and only if, the magnitude of
the unestablished requirements
does not call for a different
response. The converse also holds true. In a case where the majority
of the specific requirements
have not been established one is
naturally inclined to exercise such power in favour of the respondent
provided the magnitude or
repercussion of the established
requirements does not dictate otherwise.
[62] In this matter the
dice is heavily laden against the applicant. The objective standard
whereby a fair mind is brought to bear
on the facts as set up by the
parties dictates that the ultimate discretion be exercised in favour
of the respondent. At the heart
of the matter in this instance was
the question: What can be profitably achieved by putting the court to
the laborious task of
now exercising a discretion to condone in
favour of applicant if, in the long run, there would be no prospect
of eventual success?
(
MADINDA’S
-case,
supra,
para [12] at 317E.)
[63] On the facts I find
myself unable to exercise the discretion entrusted to me in terms of
subsection 4(b) in favour of the applicant.
I believe, and it is a
very firm belief, that if I were to grant the special condonation
application in this matter, my decision
would have been incompatible
with proper exercise of true judicial discretion –
MELANE
v SANTAM INSURANCE CO LTD
1962 (4) SA 531
(AD) at 532B –
E.
[64] In the instant
matter distinction had to be made between two types of delay. The
initial and subsequent delay. There was an
initial delay before the
expiry of the six months statutory deadline. The initial delay formed
a critical element of the equation.
It was an integral ingredient of
the enquiry into the existence or otherwise of ‘good cause’.
It contributed materially
to the applicant’s failure to meet
the statutory deadline by giving the requisite notice. It did not at
all concern the discretionary
power of the court to condone or not to
condone the critical initial failure. The requisite notice was served
on the respondent
almost 2½ years out of time.
[65] Then there was
subsequent delay after the expiry of the statutory deadline. The
subsequent delay to bring this special condonation
application formed
no critical element of the equation of satisfaction required in terms
of section 3(4)(b) before the grant of
the special condonation
application. Such subsequent delay was not considered to be an
element of the notion of ‘good cause’.
This is so because
unlike the initial delay the applicant’s subsequent delay could
not be used as a factor that aggravates
initial delay. At worst for
her it adversely diminished her chances to have the ultimate
discretion exercised in her favour –
vide
MADINDA
supra
, para [20].
[66] The current special
condonation application was launched on the 10 October 2011. It
effectively took the applicant over sixteen
months, from the date on
which she became aware that such an application was required, to file
her special condonation application.
That strengthened the perception
that the applicant was largely, though not exclusively, responsible
for all sorts of delays encountered
in this matter. Her summons
narrowly escaped prescription. Her application was 16 months
unreasonably belated. Her notice was belatedly
given almost 29 months
after the initial 6 month statutory deadline.
[67] Implicit in her
pathetically remissive conduct is the unfavourable deduction that she
never had a genuine interest in her case
for she knew all along that
her claim had no substantive merits. I would, therefore, decline to
exercise my discretion in her favour.
I am not satisfied as required
by section 3(4)(b) that good cause exists for the applicant’s
failure to comply. In her founding
affidavit she gave inconsistent
reasons for the delay. In her replying affidavit she came up with a
completely new version or reason.
Indeed she blew hot and cold at the
same time as Mr Mene put it. She had to stand or fall by the
unacceptable reasons as averred
in her founding affidavit.
[68] In my view the
respondent’s opposition of the special condonation application
was not unreasonable. Where an application
for condonation in cases
of this nature is opposed, there is much to be said for the view that
cause should follow the result.
However, there is no sound and
logical reason for reserving a decision as regards costs. The
applicant will not have a second bite
of the cherry unless this
judgment is reversed on appeal. For now, the respondent has been
successful in his opposition of the
relief sought. The outcome
favours the respondent. In the circumstances the respondent is
entitled to the fruits of his success.
[69] Accordingly, I make
the following order:
69.1 The applicant’s
application for condonation is refused.
69.2. The applicant is
directed to pay the respondent’s costs.
________________
M.H. RAMPAI, J
On behalf of applicant:
Adv. J J Buys
Instructed by:
Crause Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. B S Mene
Instructed by:
State Attorneys
BLOEMFONTEIN
/eb