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2024
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[2024] ZAFSHC 148
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Church v MEC: Free State Provincial Government: Department of Public Works and Infrastructure (527/2022) [2024] ZAFSHC 148 (28 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION. BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
Number: 527/2022
In
the matter between:
CHRISTIAN
REVIVAL CHURCH
Applicant
and
MEC:
FREE STATE PROVINCIAL GOVERNMENT:
Defendant
DEPARTMENT
OF
PUBLIC
WORKS
AND
INFRASTRUCTURE
In
re:
CHRISTIAN
REVIVAL
CHURCH
Plaintiff
and
MEC:
FREE
STATE
PROVINCIAL
1
st
Defendant
GOVERNEMENT:
DEPARTMENT OF PUBLIC
WORKS
AND INFRASTRUCTURE
THE
HOD: FREE STATE PROVINCIAL
2
nd
Defendant
GOVERNEMENT:
DEPARTMENT OF PUBLIC
WORK
AND INFRASTRUCTURE
JUDGMENT
BY:
REINDERS,
J
HEARD
ON:
29 FEBRUARY 2024
DELIVERED
ON:
28 MAY
2024
This
judgment was handed down in open court and distributed to the parties
by way of electronic communication.
[1]
This is an
opposed application for condonation in terms of Sec 3(4) of the
Institution of Legal Proceedings against Certain Organs
of State Act,
40 of 2002 ("the Act"). The applicant is the plaintiff in
the main action ("the action") under
case number 527/2022
and the respondents are the defendants therein. For sake of clarity I
will refer to the parties as in the
main action.
[2]
The plaintiff
instituted action against the defendants on 15 February 2022 claiming
certain amounts against the defendants as the
replacement value for
certain of its assets which were allegedly damaged/removed from a
premises that it had rent out to the respondents
in terms of a Lease
Agreement concluded with the Department of Public Works (Free State
Provincial Government).
[3]
On 24 May 2022
the defendants delivered their plea. A special plea was raised
denying that plaintiff complied with the provisions
of s 3(1)(a) of
the Act in that plaintiff failed to give written notice (the notice)
of its claim within six months from date on
which the cause of action
arose as required by the Act. This was followed by an amendment to
the plaintiff's particulars of claim
on 3 October 2023 with the
defendants filing their amended plea on 18 October 2023. It is common
cause that the notice was furnished
on 13 September 2023, which was
outside of the prescribed six months from the date on which the debt
became due.
[4]
The deponent
to the founding affidavit is the plaintiff's attorney of record. A
confirmatory affidavit by the director of the applicant
is attached
thereto. The plaintiff explains that the Lease Agreement was
ultimately terminated by defendant who vacated the premises
on 29
December 2020. Prior to this termination, representatives of the
parties had been in communication in anticipation of the
termination
of the lease. As early as 1 October 2019 defendants were advised that
repairs would need to be effected prior to vacation
of the premises.
An itemised list stipulating the applicable repairs required was
provided to defendants. A further meeting was
held between the
parties on 4 November 2020 and pursuant to defendants' vacation of
the premises,
e-mails
were
addressed
to
the
defendants
informing
them
that certain
assets were removed from the premises and their return was demanded.
Defendant on 11 January 2021 requested a list
of the goods removed
and, according to the affidavit, the defendants were once again
supplied with a list of assets allegedly removed
from the premises.
Plaintiff conducted various repairs to the premises and ultimately
the summons was issued on 8 February 2022.
The attorney explains that
when the plea was filed he was in the process of leaving the employ
of his previous employer and he
needed to arrange for transfer to his
newly incorporated firm. It was only thereafter and after
consultation with counsel that
he was advised that the provisions of
the Act apply whereas he was previously under the
bona
fide
but
mistaken belief that the said provisions are only applicable to
delictual damages. He admits that this view of his was wrong.
The
defendants having denied the plaintiff's request for the
aforementioned oversight attributable to a misunderstanding of the
applicability of the Act, necessitated the plaintiff to issue the
application
in
casu
on 14
November 2024. In its replying affidavit the plaintiff
alluded
thereto
that
the
defendants
had
expressly
admitted
the-conclusion
of the Lease Agreement and have not pleaded rectification of any of
the terms thereof.
[5]
The
defendants, by way of an affidavit deposed to by the Head of
Department (HOD) of Public Works and Infrastructure (the first
defendant), oppose the application on the basis that the plaintiff
has failed to establish good cause for his non-compliance with
the
Act and has failed to prove that the defendants will not suffer
unreasonable prejudice due to the delay in serving them with
the
required notice. Reliance in particular is placed thereon that
plaintiff did not deal fully with the entire time for the delay
nor
with good prospects of success on the merits of his claim. It is the
defendants' contention that the defendants would be unreasonably
prejudiced if
the late filing of the notice is allowed as plaintiff's
non-compliance has denied them the opportunity to investigate
the
terms and basis of negotiations which influenced the conclusion of
the Lease Agreement. The HOD explains that individuals who
were
involved therein initially are no longer in the employ of the
department, and some· of the documents which would be
needed
cannot be traced even after a diligent search.
[6]
The
legislative framework for condonation is set out in Sec 3(4) of the
Act which provides as follow:
(a)
If an organ of
state relies on a creditor's failure to serve a notice in terms of
subsection (2)(a), the creditor may apply to a
court having
jurisdiction for condonation of such failure.
(b)
The court may
grant an application referred to in paragraph (a) if it is satisfied
that-
(i)
the debt has
not been extinguished by prescription;
(ii)
good cause
exists for the failure by the creditor; and
(iii)
the organ
of state was
not
unreasonably
prejudiced
by the
failure.
(c)
...
[7]
Both
parties placed reliance on
Madinda
v Minister of Safety and Security
[1]
where
the Supreme Court of Appeal confirmed that a court may grant an
application for condonation if satisfied that the above three
requirements have been met. The test in doing so is not proof on a
balance of probabilities, but
"the
overall
impression
made
on
a court which
brings
a
fair
mind to the
facts
set up by the parties."
[2]
(emphasis
added)
7.1
It
was held that the requirement of 'good cause' involves an examination
of 'all those factors which bear on the fairness of granting
the
relief as between the parties and as affecting the proper
administration of justice', and may include, depending on the
circumstances,
'prospects of success in the proposed action, the
reasons for the delay, the sufficiency of the explanation offered,
the
bona
tides
of
the applicant, and any contribution by other persons or parties to
the delay and the applicant's responsibility therefor'.
[3]
7.2
At para [12]
Heher JA held that good cause for delay is not 'simply a mechanical
matter of cause and effect' but involves the court
in deciding
'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'; and in this process, '[s]trong merits may mitigate
fault;
no merits may render mitigation pointless'."
See
also:
Minister
of Agriculture and Land Affairs v CJ Ranch (Pty) Ltd
[4]
.
[8]
Applying the
above principles to the merits of the application I am inclined to
grant the condonation as prayed for. It is not contested
that the
plaintiff's claims against the defendants had not prescribed at the
time when the action was instituted. The pleadings
have been closed,
and in my view that the plaintiff's case is not devoid of any merit.
The plaintiff's cause of action remains
the written Sale Agreement.
between the parties. In my view therefore the defendants cannot be
heard to complain that they have
been unreasonably prejudiced due to
the fact that most of the parties who were signatories to the Sale
Agreement are no longer
in the employ of the defendants. It is indeed
axiomatic that changes to defendants' employees over the period of
time would have
been inevitable. However, the parties had been in
constant communication over a considerable period of time and the
defendants
were not unaware of the issues between the parties. The
matter ought to be properly ventilated in a court of law.
Although
criticism against the attorney is warranted, he was in my view not
ma/a
tides
in doing
so, nor did he display a flagrant disregard for the provisions of the
Act. Moreover, none of the plaintiff's actions (more
specifically the
communication between the parties in the history of this matter) is
indicative of the plaintiff not having an
interest in proceeding with
its intended legal action against the defendants.
[9]
Relying
on
Premier
of the Western Cape v Lakay
[5]
I
was urged by counsel for the plaintiff to grant the costs of the
application in favour of the plaintiff.
The
filing of the notice was late for a considerable period of time and
it remains an indulgence sought from this court. Moreover,
the
defendants in my view were not unreasonable in opposing the
application. In fact, it did so in protection of the public purse.
Accordingly, in exercising my discretion in all the circumstances of
this application, I deem it just and appropriate that each
party be
ordered to pay its own costs.
[10]
I therefore make the
following order:
1
.
The application
succeeds.
2.
Condonation is
granted for the applicant's failure to serve the notice contemplated
in section 3(1)(a) of the Institution of Legal
Proceedings against
certain Organs of State Act 40 of 2002 within the period laid down in
section 3(2) of the Act.
3.
Each party to
pay its own costs.
C
REINDERS, J
On
behalf of the Applicant:
Adv.
PJJ Zietsman
Instructed
by:
Muller
Gonsior Inc
BLOEMFONTEIN
On
behalf of the Respondents:
Adv.
L Tlelai
Instructed
by
:
State
Attorneys
BLOEMFONTEIN
[1]
2008
(4) SA 312 (SCA).
[2]
At
para [8].
[3]
At
para [10].
[4]
2010
(4) SA 109
(SCA) at para [37].
[5]
2012
(2) SA 1
(SCA).