IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
MODISE SIMON BANDA
and
DEPARTMENT OF POLICE, ROADS
AND TRANSPORT
Neutral citation:
Coram: MAHLATSI AJ
Heard: 28/11/2024
Delivered: 12/12/2024
Reportable / Not reportable
Case no: 2936/2023
PLAINTIFF/ APPLICANT
DEFENDANTIRESPONDENT
Summary: Application for condonation - late filing of notice in terms of s 3 of the
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.
ORDER
1. Application for condonation for the late filling of notice in terms of ss 3(2)(a) of the
Institution of Legal Proceedings Against Certain Organs of the State Act 40 of 2002 is
dismissed
2. The applicant is ordered to pay the costs of this application.
Mahlatsi AJ
Introduction
JUDGMENT
[1] This is an application in terms of which the applicant sought condonation for the
late filing of a notice of intended legal proceedings as contemplated in s 3(2)(a) of the
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Act)
and that the respondent be ordered to pay the costs of this application in the event it
unreasonably opposes this application.
[2] The applicant launched this application in response to the special plea raised by
the respondent of non-compliance with s 3 of the Act. In the main, the respondent
contended that the applicant failed to serve the required notice within the prescribed
period and that the applicant's claim has prescribed.
[3] This court is required to determine whether the applicant has mad _e out a case for
condonation as contemplated in s 3(4)(a) and (b) of the Act.
Brief material background
[4] On or about 12 June 2021, the applicant was involved in a single vehicle collision
when his vehicle hit a pothole on the on the R70 road in Ficksburg, Free State. He lost
control of the vehicle and the vehicle overturned. He sustained bodily injuries and a brain
head injury. He received medical treatment at Phuthuloha Hospital and later transferred
to Dihlabeng Regional Hospital for further treatment.
[5] The applicant did not approach his attorney to institute a claim until April 2023,
when he heard a discussion on a radio programme which indicated that persons who
were involved in accidents as a result of poor road maintenance had a right to institute
legal proceedings to recover their losses.
[6] After one year and ten months the applicant, through his attorneys of record,
notified the respondent in terms of s 3(1) of the Act of his intention to institute action
against the respondent for recovery of damages arising out of the alleged accident.
Summons was, thereafter, issued on 12 June 2023 and served on 14 June 2023 to the
Respondent, which is within three years after the alleged cause of action arose alleging
that the respondent breached his legal duty towards the applicant by, inter alia, failing to
ensure the repair of all potentially dangerous rutting and potholes on the road surface.
[7] The respondent resists the action and filed a special plea to the effect that the
notice in question was defective in that it was not served timeously.
[8] On 15 July 2024 the applicant filed the instant application, moving for condonation
of the late delivery of the relevant notice together with costs in the event the respondent
unreasonably opposes the application. The respondent opposes the application on the
grounds that there exists no good cause for condonation.
Applicable law
[9] Section 3 of the Act proscribes the institution of legal proceedings against organs
of state such as the respondent without either a written notice given within six months
from the date on which the cause of action arose or written consent to the institution of
such legal proceedings without notice.
[1 O] Failure to give the prescribed notice may be condoned by the court on application
if the relevant organ of state withholds consent and if the court is satisfied that:
(a) The relevant claim has not prescribed;
(b) good cause exists for the failure to comply; and
(c) the relevant organ of state was not unreasonably prejudiced by the failure.1
[11] In the context of the Act and for the purposes of condonation '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 parties.'2
[12] For the purpose of condonation the court has a wide discretion and ' ... "good
cause" may include a number of factors that are entirely dependent on the facts of each
case; [and] that the prospects of success of the intended claim play a significant role.'3
[13] It is incumbent upon the applicant for condonation to 'furnish an explanation of his
default sufficiently full to enable the court to understand how it really came about and to
assess his conduct and motives.'4
[14] Post-notification delay exacerbates the matter insofar as '[c]ondonation must be
applied for as soon as the party concerned realises that it is required. The onus to satisfy
the court that all the requirements under s 4(b) of the Act have been met, is on an
applicant, although a court would be hesitant "to assume prejudice for which a respondent
does not lay a basis.'"5
1 See s 3(4)(a) and (b} of the Act.
2 Madinda v Minister of Safety and Security, Republic of South Africa (2008] ZASCA 34; [2008] 3 All SA
143 (SCA) para 8.
3 MEG for Education, KwaZulu-Natal v Shange [2012] ZASCA 98; 2012 (5) SA 313 (SCA) para 15.
4 Premier of the Western Cap e NO v Lakay (2011] ZASCA 224; 2012 (2) SA 1 (SCA) para 17.
5 Minister of Agriculture and Land Affairs v C J Rance (Pty) Ltd (201 OJ ZASCA 27; 2010 (4) SA 109 (SCA)
para 39 (CJ Rance).
[15] Prescribed time periods in litigation seek to obviate inordinate delays which
compromise the interest of justice insofar as time is the worst enemy of human memory.
The notice prescribed by s 3 of the Act, inter alia, 'allows the organ of state time to
investigate the complaint and [to] possibly agree to payment or settlement without
incurring the costs of litigation.'6
[16] In Mofo/o v Minister of Police7 at para 19 the Court held: ' ... the argument that
she did not know that she was wronged stands to be rejected because it is farfetched and
untenable. It is a doctrine of law that ignorance of the law is not an excuse. I agree with
counsel for the respondent that if this argument was to pass muster, then the flood gates
for any person escaping accountability relying on it will be open.'
Issues in dispute
[17] The parties are at variance on whether or not good cause exists for condonation
with specific reference to the following:
(a) Whether or not the reason advanced by the applicant for pre-notification delay is
acceptable and satisfactory with the respondent holding that same is flimsy and the delay
is inexcusable.
(b) Whether or not the respondent would suffer prejudice if condonation is granted
with the applicant contending that the fact that the fact that the respondent deals with the
merits of the action in its opposition of the application is indicative of his ability to deal
with the matter without any prejudice in his defence.
Depositions and contentions for the applicant
[18] The applicant attributes the delay to the fact that after the accident he was not
aware that he had a cause of action against the respondent and only acquired relevant
knowledge when he heard a discussion on the radio that persons who were involved in
accidents as result of poor road maintenance had a right to institute legal proceedings to
recover their losses. After gaining knowledge that he had a claim, through the radio and
6 See in this regard Moloi v Minister of Safety and Security [2014] ZAFSHC 76 para 9; Mohlomi v Minister
of Defence (1996] ZACC 20; 1996 (12) BCLR 1559.
7 Mofolo v Minister of Police [2022] ZAFSHC 23 (Mofo/o).
consulting with his attorney, the applicant immediately gave instructions to his attorney to
proceed with the notice in terms of s 3 of the Act, dated 12 April 2023. Same was attached
to the applicant's replying affidavit and sent to the respondent via registered mail.
However, it later came to light from the respondent's plea, that the respondent did not
receive the initial notice, and a second notice was only sent on 17 October 2024.
[19] In argument on papers and before the court, Adv Van der Sandt submits that the
applicant furnished proper reasons constituting good cause for condonation. She further
contends that the respondent has not been unreasonably prejudiced by the delay involved
insofar as he has not shown any detrimental prejudice in his ability to properly investigate
the applicant's cause of action. In conclusion, she reiterates that the pre-notification delay
in applying for condonation is not prejudicial to the respondent and is, as such, not
necessarily fatal to the present application.
Depositions and contentions for the respondent
[20] The respondent's Acting Legal Director Services deposes at length to, inter a/ia,
the effect that the respondent has been severely prejudiced in his investigation of the
alleged accident because of the repairs that took place on the relevant road between the
date of the alleged accident and the date of the relevant notice. In his view, it is simply
impossible to verify the alleged accident after the inordinate delay involved in bringing
same to the respondent's attention.
[21] On the papers and in argument before the court, Adv De Kock contends, intera/ia,
the pre-notification delay of about two years before the application for condonation
remains unsatisfactory and the attempted explanation is not full enough to enable this
court to evaluate the applicant's contribution to the delay and the applicant's bona tides.
Discussion
[22] In law, the applicant was obliged to serve the relevant notice on the respondent no
later than six months, but same was only served almost two years after the alleged cause
of action being the alleged accident. The delay involved was indeed inordinate and called
for a sufficiently full explanation on the part of the applicant. This pre-notification delay, in
my view, simply cries out for explanation and reflects negatively on the applicant's attitude
towards the matter, regard being had to the fact that he is self-employed as plumber not
necessarily well-versed in legal affairs. Once again, the reason why he did nothing to
secure the necessary assistance prior to April 2023 remains a mystery.
[23] The argument that the applicant did not know that he was wronged up and until he
heard a discussion on the radio that people who were involved in accidents where the
roads were not properly maintained, had a right to claim, stands to rejected because it is
farfetched and untenable. It is a doctrine of law that ignorance of the law is not an excuse.
I agree with counsel for the respondent that if this argument was to pass muster, then the
floodgates for any person escaping accountability, will be opened.8
[24] The applicant insists that the respondent has not shown any detrimental prejudice
to his ability to properly investigate the cause of action. The onus is, however, on the
applicant to show that all requirements set out in the Act for condonation have been met.
The respondent, as the organ of state concerned, is only saddled with the evidentiary
burden to lay the basis for the court to infer the presence of unreasonable prejudice on
its part.9
[25] The court is satisfied from the opposing papers that the respondent has done more
than lay the basis for the relevant inference to be drawn. It has in effect demonstrated
how it would be forced to accept the applicant's ipse dixit because of the delay involved,
which effectively deprived it of the opportunity to investigate the matter properly in order
to, inter alia, test the veracity of the claim.
[26] Having considered the authorities cited and the facts of this application for
condonation, I am not persuaded that good cause exists for condonation in the instant
case.
Costs
8 Mofo/o para 19.
9
C J Rance paras 38-39.
[27] There exists no reason to deviate from the general rule in practice with regards to
costs. Costs, therefore, follow the result.
Order
[28] Accordingly, I make the following order:
1. Application for condonation for the late filling of notice in terms of ss 3(2)(a) of the
Institution of Legal Proceedings Against Certain Organs of the State Act 40 of 2002 is
dismissed
2. The applicant is ordered to pay the costs of this application.
Appearances
For the Applicant:
Instructed by:
For the Respondents:
Instructed by:
Adv. N Van Der Sandt
Nemakanga Attorneys
c/o Webbers Attorneys
BLOEMFONTEIN
Adv. D. DE KOCK
Office of The State Attorney
BLOEMFONTEIN