IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 12612/2019
In the matter between:
GRAHAM WEBBER
Applicant
and
MINISTER OF POLICE
Respondent
Coram: Acting Justice A Montzinger
Heard: 19 September 2024
Delivered electronically: 25 September 2024
JUDGEMENT
Montzinger AJ
Summary Introduction
1. This is an application for condonation of the applicant's failure to comply with
ss 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of
State Ac t 40 of 2002 ("the Act"). Th e subsection requires that a party
intending to institute legal proceedings against an organ of state must serve
notice of the intended action within six months from the date the debt
becomes due.
2. The applicant's cause of action against the respondent (the "Minister") arises
from a claim for delictual damages due to alleged negligence by members of
the South African Police Service (the “police”) on or about 30 September
2016. On th is date, the applicant was shot in the back , by the police, while
fleeing, resulting in a serious injury that left him a functional paraplegic.
3. The six-month period provided under s s 3(2)(a) of the Act for the applicant to
notify the Minister of the intention to institute action expired at midnight on 29
March 2017. However, nearly eight years after the events of 29 September
2016 that led to his paraplegia, this court is only now asked to consider an
application for condonation of the late notice required by the Act.
4. I will begin by outlining a chronology of the key events, followed by a brief
exposition of the legal principles guiding this decision, a summary of the
parties' respective positions, and my evaluation in light of the applicable legal
principles and facts.
Chronology of essential events
5. The following chronology details the events from the time of the incident that
gave rise to the claim until the eventual filing of the application for
condonation.
6. In September 2016, the applicant met a M r. Ferlin Arries in Cape Town. Mr.
Arries, a resident of Clanwilliam in the Western Cape, offered the applicant
R30,000 to kill Mr. Will -Carl Booysen ("Booysen"). A week later, the applicant
travelled to Clanwilliam armed with a 9mm Pietro Beretta firearm and
ammunition. Mr. Arries provided the applicant with lodging, and on the
evening of 29 September 2016, after Booysen was pointed out to him, the
applicant shot Booysen multiple times before fleeing the scene. Booysen died
on the spot.
7. The following day, on 30 September 2016, the applicant intended to return to
Cape Town. While en route on the Algeria Road near the N7, the police,
having received a tip -off that the applicant was the shooter, had set up a
roadblock. Although there was an initial intention n ot to stop at the roadblock,
the vehicle eventually came to a halt. The applicant then jumped out of the car
and attempted to flee, with the police in pursuit.
8. During the pursuit, shots were fired at the applicant, and one of the bullets
struck him, ending the chase. The applicant was arrested, but the gunshot
caused a spinal cord injury, resulting in his paralysis. He spent approximately
two months and one week in hospital, during which the bullet was removed on
14 October 2016. He was discharged on 3 Dece mber 2016 but had not yet
been charged with Booysen's murder.
9. Nearly 20 months later, on 20 August 2018, the applicant was re -arrested. He
remained in custody until 14 February 2019, when he was released on bail
pending trial. It was only on 11 June 2019 that the applicant’s attorney sent a
notice in terms of s s 3(2)(a) and (b) of the Act to the Minister. This notice was
followed by an action for delictual damages amounting to R3,600,000 in July
2019. In both the notice and the particulars of claim, t he applicant alleged that
the police officer(s) who shot him were negligent, as alternative methods of
arrest could have been used to apprehend him.
10. On 30 September 2019, a few months after the summons was issued, the
applicant entered into a plea agreemen t with the State. He pleaded guilty to
Booysen’s murder and other charges, and on 19 October 2019, he was
sentenced to 18 years in prison.
11. On 15 November 2019, the Minister filed a plea in response to the action,
raising a special plea that the applicant's notice did not comply with the Act's
provisions as it was not sent within six months of the date the debt became
due. After the Minister's plea highlighted the non -compliance, another 23
months passed before, on 29 October 2021, the applicant filed an app lication
(the "first application") seeking condonation for the failure to comply with s s
3(2)(a) of the Act. The Minister delivered a detailed answering affidavit on 21
January 2022, and the application was set down for hearing on 4 February
2022. One of t he points raised in opposition was that the applicant’s founding
affidavit supporting the first application was defective, as it was not properly
commissioned, and that the applicant had not signed it in the presence of a
peace officer.
12. The first application was not heard on 4 February 2022 . The parties agreed to
a further hearing date of 10 October 2022. However, in September 2022, the
applicant withdrew the first application and tendered the Minister’s costs.
Following this, the applicant did nothing for another 18 months. On 22 April
2024, a new application (the "second application") for condonation of the
failure to comply with s s 3(2)(a) was filed. I t was set down for hearing on 5
June 2024. After another postponement, it was finally heard on 20 Sep tember
2024.
13. From the incident on 30 September 2016 to the hearing of the condonation
application, nearly eight years have passed. Although the prescribed notice
was required to be sent within six months of 30 September 2016, this court is
now being asked, over seven years later, to condone the applicant’s failure to
comply with the Act’s provisions.
The legal principles – condonation of a late notice
14. There is little dispute about the prevailing legal principles a court must take
cognisance of when decidin g an application for condonation in this instance.
The applicable provision of the Act is ss 3(4)(a) and (b) that provide s as
follows:
(4) (a) If an organ of State relies on a creditor's failure to serve a notice
in terms of subsection (2) (a), the credito r 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.
15. Subsection 3(4)(b) sets out the three interconnected requirements 1 that the
applicant must establish when seeking condonation for non -compliance with
the notice provisions of the Act. The court’s powers when considering such an
application is limited by these requirements . A court must be satisfied that: (i)
the debt has not been extinguished by prescription; (ii) good cause exists for
the failure to serve the notice in accordance with s s 3(2)(a) or to serve a
notice that complies with s s 3(2)(b); and (iii) the organ of state has not been
unreasonably prejudiced by the failure.
16. Case law has added further legal context to various elements for
consideration within each requirement. The phrase "if [the court] is satisfied "
in ss 3(4)(b) has been interpreted to mean that the standard of proof is not on
a balance of probabilities, but rather the overall impression the facts make on
a court that approaches the matter with fairness2.
17. The first requirement pertains to whether the applicant's claim has prescribed.
This is generally straightforward, as the claimant must institute ac tion within
1 Madinda v Minister of Safety and Security, Republic of South Africa [2008] 3 All SA 143 (SCA); 2008
(4) SA 312 (SCA) (“Madinda”) - par 15 referring to United Plant Hire (Pty) Ltd v Hills 1976 (1) SA
717 (A) at 720E-G.
2 Madinda – par 8
three years from the date the debt becomes due 3. In this case, prescription is
not in issue, as the action was initiated before the claim became prescribed.
18. The second requirement involves establishing "good cause." Over time, the
courts have developed a flexible approach, considering all factors that affect
the fairness of granting relief to the applicant and the proper administration of
justice. Our c ourts have adopted a holistic view, examining factors such as
the applicant's prospects of su ccess, reasons for the delay, the adequacy of
the explanation provided, the applicant’s bona fides , and whether others
contributed to the delay 4. Also, a court exercises a wide discretion 5, as the
assessment of good cause depends heavily on the facts of each case6. The
strength of the applicant’s claim also plays a key role 7, as strong merits may
mitigate procedural failures, while weak merits may negate them.
19. However, o n consideration of the various judgements , I was referred to , it
seems that in general under the requirement of ‘ good cause’, the courts have
always focussed the inquiry on the explanation for the delay in sending the
notice and whether the applicant’s claim has reasonable prospects of
succeeding.
20. In Madinda, the court referred to Schreiner JA's judgment in Silber v Ozen
Wholesalers8, that emphasised the approach that the applicant must provide a
detailed explanation of the default, allowing the court to understand how the
non-compliance occurred. This would enable a court to assess the applicant’s
conduct and motives. A key issue would be whether the applicant has offered
a valid reason to nullify or significantly reduce any culpability for the delay.
21. The court must also avoid an unbalanced approach that overemp hasises
procedural compliance at the expense of the merits. If an applicant
3 Subsection 13(1) of Prescription Act 68 of 1969
4 Madinda par 10
5 Madinda para 8; Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA) (“Lakay”) para 14.
6 Madinda para 10; Minister of Agriculture and Land Affairs v C J Rance (Pty) Ltd 2010 (4) SA
109 (SCA) (“Rance”) para 36.
7 Rance para 37
8 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) (at 352H-353A)
demonstrates strong prospects of success, it would be unjust to deny a
hearing solely due to procedural failures, particularly where the delay has not
caused undue prejudice to the organ of state. Therefore, the court must weigh
the explanation for the delay in conjunction with the merits of the case to
ensure justice is served both procedurally and substantively9.
22. During oral arguments, I asked Mr. Steyn, counsel for the applicant , whether
the delay in filing the condonation application should also be considered part
of the "good cause" requirement. Mr. Steyn, citing Mathobela10
and Madinda11, argued that the delay in filing the condonation application
should not be part of the "good cause" evaluation. Instead, he contended, the
delay should be assessed as part of the court’s overall "fair mind" approach
when considering whether to grant condo nation under s s 3(4)(a) and (b). Mr.
Salie SC, counsel for the Minister, referred to Rance12, which suggests that
the delay in filing the condonation application should indeed be factored into
the assessment of whether the "good cause" requirement has been met.
23. Upon reviewing Mathobela and Madinda, it is clear that the court can consider
the delay in filing the condonation application. Whether the court evaluates it
under the good cause requirement or as part of its broader "fair mind"
approach is not decis ive. What matters is that the delay is a relevant factor
that the court may consider in its overall assessment of the matter . In this
regard the court said in Madinda:
“Applications for condonation should in general be brought as soon
after the default as possible. Thereby possible further prejudice to the
other party and misconception as to the intentions and bona fides of
the applicant can be lessened. A delay in making the application should
be fully explained. The failure to do so may adversely affect
condonation or it may merely be a reason to censure the applicant or
9 Madinda par 12
10 Mathobela v Minister of Police and Another (417/2022) [2023] ZAMPMHC 38 (20 October 2023)
(“Mathobela”)
11 paras 14; 20 & 28
12 par 49
his or her legal advisers without lessening the force of the application. I
think that the latter is the correct attitude to take in the present matter in
relation to the evaluation of whether condonation should be granted.”13
24. Mr. Steyn's argument is more nuanced upon closer examination. When
reading Mathobela14 and Madinda15 together, it appears that once the
applicant has instituted action, the State should be aware of the applicant’s
intent to proceed, reducing the necessity for a condonation application. This
seems to suggest that the timing of when a condonation application is
eventually launched and the delay in launching it, is less significant. However,
the delay in launching the condonation application remains a factor the court
must consider. An applicant cannot claim to have always intended to pursue
the action while taking months or years to regulari se a defective notice,
especially after attorneys have come on reco rd. Any delay must be
explained16, and the court may consider this as part of the overall assessment
of whether to grant condonation.
25. The third requirement relates to prejudice. In cases like Mohlomi17
and Mdeyide18, the courts have found that prejudice is inherent in any case
involving an unreasonable delay.
26. With these principles in mind, I now turn to the question of whether the
applicant has established a case for condonation. First, I will address whether
the notice itself complied with the provisions of the subsection.
The letter of the demand
27. It was argued on behalf of t he Minister that the notice in terms of ss 3(1)(a)
did not comply with the requirements of ss 3(2)(b)(i)-(ii) of the Act. While there
13 par 28
14 paras 35 - 36
15 para 28
16 Mathobela par 36
17 Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC) para 9.
18 Road Accident Fund an d Another v Mdeyide 2011 (2) SA 26 (CC) (2011 (1) BCLR 1 ; [2010] ZACC
18)
was som e disagreement between counsel on whether the Minister properly
raised this issue in the papers, it is sufficient to note that there are certain
aspects of the notice that appear to be lacking. It is indeed very terse.
However, given my finding, it is unne cessary to address whether the notice
comply with the requirements of the subsection. For the purposes of my
analysis, I will assume, without deciding, that the notice meets the minimum
requirements of the Act.
Evaluation – did the applicant establish Good Cause
28. In evaluating whether good cause has been established, I will address both
the delay in sending the required notice and the delay in launching the
condonation application. However, for the purposes of t he good cause
requirement, I will focus solely on the delay in sending the notice. The delay in
filing the condonation application will be considered separately, as part of my
discretion of applying a ‘fair mind’ to all relevant factors.
The period of delay in sending the notice
29. The delay in sending the required notice was 2 years and 9 months, from the
date of the incident of 29 September 2016 until the notice was sent in June
2019. The explanation provided for this delay is riddled with unexplained
gaps19. The applicant has not offered a sufficient explanation that covers the
entire period.
30. The following periods remain unexplained or has an inadequate explanation:
30.1 The period from the incident until the applicant’s discharge from
hospital on 3 Decemb er 2016. While it may be assumed that the
applicant was too incapacitated to communicate or comprehend his
circumstances due to his injury, this is mere speculation. There are no
allegations regarding his mental or physical state during this time, nor
19 Madinda par 28
whether he was aware of his potential claim. If his condition was so
severe, further leniency might have been warranted. I cannot imagine
that t he six -month period can run if the applicant was cognitively
impaired or incapacitated, but this was not addressed or explained, and
thus, the failure to explain this period weighs against him.
30.2 The second period, from 3 December 2016 to the end of March 2017,
spans four months —the time between his discharge from hospital and
the expiration of the six -month notice period on 29 March 2017. The
applicant was not charged with any crime upon discharge, but no
explanation is provided for this period, other than a vague claim of
lacking the financial means to pursue the matter. The court is left
without any details of how finan cial constraints hindered the applicant's
ability to pursue his claim during this time.
30.3 The third period, from April 2017 to 20 August 2018, amounts to
another 16 months during which the applicant was not incarcerated.
Again, aside from general statements about financial difficulties, there
is no comprehensive explanation for this significant delay.
30.4 The next period, from the applicant’s re-arrest on 20 August 2018 to his
release on bail on 14 February 2019, is also unexplained. His
incarceration does not automatically excuse his inaction, as he could
have consulted an attorney during this time. The applicant provides no
details on any attempts to do so, which should have been explained .
The court in Mathobela confirmed that mere inca rceration does
not automatically oust a person ability to act20.
30.5 Finally, the period from his release on 14 February 2019 to May 2019,
except for the inference that the applicant went to go see his attorney ,
is another unexplained period.
20 Mathobela par 25
31. The lack of explanation for these gaps in the timeline undermines the
applicant’s case. He merely claims that he approached his attorney in May
2019 through his stepfather, but he does not explain why he did not seek legal
advice earlier, especially after his initial release from prison. Also, there is no
explanation after he was first released when he understood or learned that he
had a claim against the Minister.
32. While the applicant may not have been aware of the provisions of the Act, this
factor is only marginally in his favour. Its weight is diminished by the fact that
the applicant fail ed to disclose when he first learned of his potential claim
against the Minister. If he received legal advice, he would likely have been
informed of the statutory noti ce requirement. Additionally, the applicant states
that his stepfather facilitated the claim process during his second
incarceration, but details regarding his interactions with the stepfather ,
including whether they discussed the notice period, are absent . The
confirmatory affidavit from his attorney is also not helpful.
33. The applicant’s claim that he lacked the financial means between 2017 and
2018 is insufficient as it lacks detail. He provides no explanation of what
steps, if any, he took to inquire abo ut his possible claim or why his stepfather
only referred him to an attorney in 2019.
34. Again, as foreshadowed, the applicant’s failure to disclose when he first
reasonably became aware of his claim against the Minister raises concerns.
Given his repeated assertions of financial hardship, it was crucial to inform the
court when he learned about his potential claim. The applicant’s silence on
this issue appears to be an intentional omission, given the likely
consequences of such an admission.
35. Given the applicant's failure to provide a comprehensive and satisfactory
explanation for the delay in sending the notice, and considering the relevant
legal principles, I am compelled to conclude that this aspect seriously
impeaches the applicant’s attempt to demonstrate good cause.
Merits of the applicant’s claim
36. Mr Steyn, for the applicant, placed considerable emphasis on the fact that the
applicant was shot in the back, as if to suggest that, because this fact is
undisputed, the applicant would likely succeed with his claim at trial.
37. While the fact that the applicant was shot in the back may, at first glance,
support a claim that the police acted negligently, this alone does not mean the
applicant’s case has reasonable prospects of success with his claim. The
context of the shooting is important. The applicant was fleeing the scene after
committing a serious crime, and the police were acting on information that he
was armed and dangerous. In such circumstances, the actions of the police
must be assessed in light of their duty to apprehend a suspect who posed a
significant threat to public safety. Therefore, the fact that the applicant was
shot in the back does not automatically establish negligence on the part of the
police, and also does not promote the merits of the applicant’s claim.
38. At paragraph 5 of the particulars claim the applicant pleaded that the police
knew or should reasonably have known, that the applicant was running away
from the police and that the applicant was no threat to its members. I
disagree, the applicant will have a hard time at trial to portray himself as an
unarmed and innocent victim fleeing the police having regard to his own
version of events recorded in the plea agreement.
39. At paragraph 6 of the particulars of c laim the applicant pleaded that the
members of the police should reasonably have foreseen that if shots were
fired while he was running away, that bullets could injure the applicant in the
back. Again, the reasonable foreseeability is directly linked to th e justification
defence the police can invoke in terms of ss 49(1) and (2) 21 of the Criminal
21 49. Use of force in effecting arrest.—(1) For the purposes of this section—
(a)“arrestor” means any person authorised under this Act to arrest or to assist in arresting a suspect;
(b)“suspect” means any person in respect of whom an arrestor has a reasonable suspicion that such
person is committing or has committed an offence; and
(c)“deadly force” means force that is likely to cause serious bodily harm or death and includes, but is
not limited to, shooting at a suspect with a firearm.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists
Procedure Act. In light of the facts and circumstances of this matter and
having regard to authorities like Govender22 read with ss 49(1) and (2) , the
chances are remote that the applicant could succeed to establish the
elements of negligence and causation, where reasonable foreseeability may
resort23, as requirements of a delictual claim.
40. At paragraph 7 of the particulars of claim the allegations are also made that
reasonable police officers would have taken reasonable steps to prevent such
an incident from taking place by pursuing him without lethal force. This basis
for delictual liabilit y is also problematic for the reasons foreshadowed in the
previous paragraph. However, it is also compromised since the applicant had
to allege more. There are no allegations what other reasonable steps the
police could have taken in the circumstances. If the applicant could not
identify the ‘other reasonable steps’ the police could have taken in the
particulars of claim, they certainly will not magically appear during a trail and
without them a claim will be hard to sustain.
41. Also, as foreshadowed, the appl icant has not been generous with the facts
and / or the allegations in support of his claim in either the particulars of claim
and the affidavits in support of the first and second condonation application.
This is a matter where the paucity of detail provi ded by the applicant
exacerbate his case 24. The plea agreement, which is undisputed, strongly
supports the Minister’s case and would weigh heavily against the applicant at
a trial. The applicants should have dealt with the contents of the plea
agreement head on and the failure to address it all, bringing an open and fair
the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the
suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use
such force as may be reasonably necessary and proportional in the circumstances to overcome the
resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force
must be reasonably necessary and proportional in the circumstances, the arrest or may use deadly
force only if—
(a) the suspect poses a threat of serious violence to the arrestor or any other person; or
(b) the suspect is suspected on reasonable grounds of having committed a crime involving the
infliction or threatened infliction of serious bodily harm and there are no other reasonable means of
effecting the arrest, whether at that time or later.
22 Govender v Minister of Safety and Security (342/99) [2001] ZASCA 80 (1 June 2001)
23 MTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 76 (SCA)
24 Minister of Agriculture and Land Affairs v C J Rance (Pty) Ltd (293/09) [2010] ZASCA 27 (25 March
2010) 4 SA 109 (SCA) at para [11]
mind to this issue, cast serious doubt over the applicant’s version of events.
42. In conclusion on good cause . I find in these circumstances I am not
persuaded that the applicant has established good cause to warrant the
interference of the court and condone the non -compliance with the statutory
notice requirement. Given the delay in sending the notice and the lack of a
satisfactory explanation for the entire period of the delay coupled with the fact
that there are weak prospects of success for the applicant to succeed with a
delictual claim, the applicant has not established "good cause".
Prejudice to the Minister
43. It was argued on behalf of the applicant that the Minister had not
demonstrated any specific prejudice if the late notice were condoned.
44. However, suffice to find that the prejudice referred to in s s 3(4)(b)(iii) is
explained by the courts in Mohlomi25 and Mdeyide26. According to these
authorities p rejudice is inherent in every case where there has been an
unreasonable delay. In this case the delay stretches over 2 years and 9
months and is not sufficiently explained.
45. Furthermore, t he lack of a reasonable explanation for the delay and the
limited chance of success overshadows the absence of explicit prejudice,
making it unnecessary to rely solely on that aspect to dismiss the application.
There is no justification for dragging the Minister through litigation where the
applicant has failed to act diligently, especially when the claim itself appears
to have little to no prospects of success.
The delay in launching the condonation application.
46. The delay in launching the condonation application was nearly four years.
25 Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC) para 9.
26 Road Accident Fund an d Another v Mdeyide 2011 (2) SA 26 (CC) (2011 (1) BCLR 1 ; [2010] ZACC
18)
47. There is no adequate explanation for why the applicant waited months to file
the first condonation application and then delayed again in filing the second
application. The applicant’s attorney who sent the notice in June 2019 must
have known it did not mee t the six -month requirement. After the Minister
raised the issue of non -compliance in November 2019, another 23 months
passed before the applicant filed the first condonation application in
October/November 2021, with no explanation for this lengthy period of
inaction.
48. The period from when the first application was scheduled to be heard on 4
February 2022 until its withdrawal in September 2022 is similarly unexplained.
By that time, the applicant was aware of the defective founding affidavit, yet
no action was taken between November 2021 and the eventual withdrawal of
the first application . The lack of diligence by the applicant and his attorney
during this period remains unaddressed.
49. After the first application was withdrawn in September 2022, there was
another 18 -month period of inactivity before the second condonation
application was finally filed on 22 April 2024. The applicant provides no
explanation for this delay from October 2022 to April 2024, merely addressing
the defective affidavit of the first ap plication, which was insufficient. A proper
explanation for the prolonged delay in pursuing condonation was required,
particularly from the attorney now handling the litigation on behalf of the
applicant.
50. The gaps in the timeline reflect a failure to proac tively pursue condonation.
This is not in line with the well-established principle that condonation
application must be pursued as soon as possible, which did not happen here.
51. The lack of explanation for the delay in launching the condonation application
is a serious failure. When viewed holistically, it demonstrates that the
applicant is the creator of his own misfortune in this case. He must
unfortunately bear the consequences of this inaction. The delay in the
explanation of the second condonation applic ation further weakens the
argument for good cause and exacerbates the prejudice to the Minister.
52. In exercising my discretionary function, and in line with the relevant
authorities, I must have regard to the significant delay in launching the
condonation application. This delay contributes to the broader assessment of
fairness and reinforces the overall impression I form of the applicant's
conduct. The delay in pursuing the condonation application mirrors the
general pattern of the applicant's failure to act with diligence and proactivity in
advancing his claim. It further underscores the applicant’s lack of urgency in
addressing the procedural non-compliance.
Conclusion
53. In light of the foregoing, I find that the applicant has failed to establish good
cause for the court to grant condonation for sending the statutory notice
outside of the prescribed six -month period. The delay in sending the notice
was not adequately explained, and to the extent that an explanation was
provided, it was insufficient. Add itionally, the applicant’s claim has little to no
prospects of success. The delay in launching the condonation application
reflects a continued pattern of inaction and lack of diligence, which was also a
factor that weighed heavily against the applicant. Although the Minister could
have been more explicit regarding the prejudice it would suffer, the prejudice
is evident given the unreasonable delay in the sending of the notice, and in
launching the condonation application and the weak merits of the applican t’s
claim.
54. In respect of costs, there is no reason why the applicant should not be
burdened with the costs of the application. Mr Salie SC, informed me that
while the Minister is entitled for coun sel’s fees to be taxed on scale C, the
Minister would not in sist on the higher scale and would be contend with an
order on scale B.
55. In the circumstances I make the following order:
The application for condonation for the late service of the notice in
terms of section 3(4)(2)(b) of Act 40 of 2002 is dismissed with costs
on a party and party scale including advocate fees, on scale B from
12 April 2024 onwards.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicant’s counsel: Mr. R Steyn
Applicant’s attorney: Swemmer & Levin Attorneys
Respondent’s counsel: Mr. M Salie SC
Respondent’s attorney: State Attorney