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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 5796/2022
In the matter between
THE CITY OF JOHANNESBURG METROP OLITAN MUNICIP ALITY Applicant
And
TSHOLOFELO MANYETSA Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED: NO
DATE: 29 May 2025
SIGNATURE: _____ ____________
2 Summary :
Condonation - Rule 27(3) of t he Uniform Rules of t he Court. Late su bmission
- application - leave to appeal judgment of this Court. Lateness - unavailability of the
Counsel and an administrative error. Delay is not excessive. Thus, reasons proved
unreasonable, and ap plication dismissed.
______________________________________________________________________
LEAVE TO A PPEAL : JUDGM ENT
______________________________________________________________________
NTLAMA- MAKHAN YA AJ
[1] This is
an application for leave to appeal against the judgment of this Court
delivered on 05 March 2025. The application is comprised of two parts. Part A dealt with
an application for condonation regarding the late filing of the leave to appeal application.
Part B dealt with the merits of the application for leave to appeal. Both parties were legally
represented and appeared before me on 19 May 2025.
[2] The Applicant sought an order for condoning the failure to timeously serve the
notice of leave to appeal the judgment granted against him by this Court.
[3] The application was opposed by the Respondent in that the delay in filing the notice
of the leave of appeal was unreasonable and failed to comply with the requirements ofRule 27(3) of the Uniform Rules of the Court (Rules). In terms of the aforesaid Rule, the
application for condonation must be granted by the Court after it has sati sfied that ‘ good
cause’ has been shown for the delay in submitting the main application of the dispute.
Background
[4] This was an application for condonation of the Applicant’s late filing of the notice
of leave to appeal the judgment of this Court. Following the delivery of the judgment on
05 March 2025, the Applicant ought to have filed the notice of leave to appeal on or before
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27 March 2025. Instead, it was only filed on 14 April 2025 which meant eleven (11) days
from the date it ought to have been filed or brought before this Court. According to the
Applicant , he submitted the judgment to his Legal Department (Department) on 06 March
2025 to determine any prospects of appeal as the latter Department deals with legal
issues. The Applicant submitted that on 12 March 2025, the Legal Department requested
the Counsel who dealt with the matter to provide a legal opinion on the prospec ts of
success. The said legal advice was provided on 25 March 2025 with an affirm ative
indication of the prospects of success on appeal. The Applicant further submitted that on
01 April 2025, his attorneys were instructed to prosecute the appeal which was served on
the Respondent on 09 April 2025. The Applicant submitted that the delay in bringing the
application was not inordinate because he had to satisfy himself whether there were
prospects of success before the application for leave to appeal could be made.
[5] The main reason advanced by the Applicant for the delay in submitting the notice
of the leave to appeal was based on the non -availability of the Counsel who dealt with
this matter which then transmitted to an ‘administrative error ’ on his part to act timeously .
[6] The application was opposed by the Respondent and filed a notice to oppose
which was then unpacked during oral hearing. Broadly, the Respondent’s opposition was
based on the unreasonableness of the a pplication for condonation considering the
Applicant’s receipt of the legal advice on 25 March 2025 and still failed to file the
appli cation tim eously.
The parties ’ submissions
[7] The Applicant submitted that the reasons for the late filing of the application before
this Court were not due to his fault because he had to consult with his legal Department
and obtain an advice on the prospects of success before it could initiate the prosecution
of the application for leave to appeal. He further submitted that due to the non- availability
of the C ounsel who dealt with this matter, the legal advice could only be furnished on 25
March 2025. According to him, the eleven- day (11) period was inordinate and not
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excessive and requires this Court to adopt a ‘ holistic approach ’ in considering the factors
that constituted the delay. Further, a s indicated in the application for leave to appeal, the
delay in failing to serve and file the applicant's Plea was due to the ‘administrative error ’
on the part of the attorneys of the applicant and it is not inordinate. He further submitted
that this case is of extreme importance in that he is an organ of state entrusted with public
funds.
[8] On the other hand, as noted above, the Respondent opposed the application citing
the length of the delay as unreasonable because of the delivery of the judgment on 05 March 2025. He further submitted that the Applicant had an ample opportunity to submit
the application, and the reasons provided were not justifiably.
[9] It is therefore important that I provide a brief discussion on the principles regulating
application for condonations. Such brief is motivated by the fact that the principles of
condonation are in the public domain and mostly well known .
Legal framework for condonation
[10] The application for condonation is explicitly stated in Rule 27(3) of the Uniform
Rules of the Court. The said Rule provides as follows:
“(1) In the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order extending or
abridging any time prescribed by these Rules or by an order of court or fixed by an
order extending or abridging any time for doing any act or taking any step in
connection with any proceedings of any nature whatsoever upon such terms as to
it seems meet.
………………… (3) The court may, on good cause shown, condone any non- compliance with
these Rules.”
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[11] In essence, a ‘good cause’ must be shown for the court to exercise its discretion
based on the reasonableness of the delay. In this regard, the Applicant must demonstrate
specific factors that caused the delay without providing pure sequence of events relating
to the said delay. This means that the application should give substantive reasons as to
the underlying factors that constituted the delay. Of further importance is the
reasonableness of the furnished reasons .
Analysis
[12] The founda tion for the determination that serves as the basis for the justification of
the delay was laid bare by Conradie AJ in Independent Municipal and Allied Trade Union
(IMATU) obo Zungu v SA Local Government Bargaining Council and others [2009] ZALC
137 at para 7 . In that case, Conradie AJ held:
“in explaining the reason for the delay, it is necessary for the party seeking
condonation to fully explain the reason for the delay for the court to be in a proper
position to assess whether the explanation is a good one. This in my view requires
an explanation which covers the full length of the delay. The mere listing of
significant events which took place during the period in question without an
explanation for the time that lapsed between these events does not place a Court
in a position properly to assess the explanation for the delay. This amounts to
nothing more than a recordal of the dates relevant to the processing of a dispute
or application.”
[13] As deduced from Conradie AJ with an affirmative endorsement from other cases
that have since dealt with the application for condonation, it is evident that a party seeking
relief for condonation must demonstrate but not limited to (i) cause of the delay , (ii) length
of the delay , (iii) r easonableness of the delay , (iv) p rospects of success in the main
application and (v) e ffect on the administration of justice, ( Meyerowitz AJ in Motloung v
Malabane [2024] 11 BLLR 1166 (LC) at para 7. These factors are interdependent and do
not exist in the separation of each other as they must be considered in the context of the
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interests of justice. The interdependence of these factors when put in a judicial stand , as
much as each case must be determined according to its own merits, the basic question
is to establish whether the granting of condonation will serve the interests of justice.
According to Myburgh JP in Allround Tooling (Pty) Ltd v N UMSA (DA2/97) [1998] ZALAC
8 at para 8 gave emphasis on the ‘importance of the timeous submission of the notice
and the reasonableness of the explanation to minimise any opportunity that may border
on contempt of Court amounting to an unprofessional and irresponsible attitude towards
the interests of the Respondent and ultimately the interests of justice’. Simila rly, Ngcobo
J in National Education Health and Wor kers Union v University of Cape Town 2003 (2)
BCLR 154 (CC) at para 31 endorsed the quest for timely submission of applications for
condonation and held “by their nature, [ issues of public governa nce] must be resolved
expeditiously and be brought to finality so that the [interface] between the parties
[because it is in the public interest that to eliminate any form of public administration that
may negatively affect the system of governance]. ”
[14] In this case, I have noted above that I will provide a brief of the principles regarding
the application for condonation. I further mentioned that these factors are interdependent and should not be considered in isolation of each other. Therefore, I need not analyse
each of the factors as they are all encompassed on the consideration of the
reasonableness of the underlying reasons that constituted the delay as envisaged in Rule
27(3).
Evaluation
[15] This application is of fundamental importance in the development of the principles
relating to jurisprudence that gives content to the meaning of the merited or unmerited
application for condonation. As explicitly stated by the Applicant’s Counsel, this case is of
significance because of his status as a sphere of governance.
[16] In this case, the cause of the delay in submitting the notice of the application for
leave to appeal was characterised by the (i) internal consultative processes , (ii) the non-
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availability of the Counsel that dealt with the matter and (iii) the Applicant’s ‘ administrative
error’ on his part.
[17] I must state that at face value, the 11- day period might not be excessive, thus the
reasons proffered by the Applicant in that he had to get internal advice before proceeding
with filing of the notice to appeal is not a reasonable and acceptable explanation. It is my
view that in considering the possibility of an appeal, the Applicant could have timeously ensured that this matter received the attention it deserves from his L egal Department so
that the application is not found wanting for lack of compliance with the prescribed rules.
The lack of compliance with the basic rules of this Court undermines the interests of
justice regarding the finality of the matter and has a negative effect on the functioning not
only of this Court but the entire judiciary. Waglay JP in Govender v Commission for
Conciliation, Mediation and Arbitration [2024] 5 BLLR 453 (LAC) at para 69 held that “ it is
trite that there is a limit to which the litigant can escape the result of his attorney ‘s lack of
diligence, […] however, it is equally true that the facts of matter will dictate whether or not
the (in)actions of a litigant can be attributed to the litigant.” This principle is of direct
relevance to this matter because the Applicant’s Legal Department as drawn from Waglay
JP at para 70 is not “ merely some other role player that played an insignificant role in
prosec uting the filing of the [notice of the leave to appeal ]. [The Department ] is the
representative of the [legal affairs of the Applicant that is bestowed with legal authority in
ensuring compliance with the laws ] and there is little reason why in regard to condonation
of a failure to comply with the Rule of Court should be absolved from the normal consequences of [of the failure to submit timeously] [despite] the circumstance,” (all
footnotes omitted) . I find it difficult to understand that the Applicant’s consultation process
could take precedence over the basic rules of this Court for the submission of the notice
timeously. The rules cannot be rel egated to a sphere of lack of accountability in the overall
scheme of ensuring that the entrusted public funds as the Applicant contended, are used in a justified manner. This Court is not to determine how the Applicant should use the
public funds, of importance is how it exercises its administrative pr ocesses on the use of
these funds. Therefore, t he consultation process is not a ‘ good cause’ for lack of
compliance with the expeditious submission of the notice of the leave to appeal. As
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expressed by Conradie AJ above, citing with approval Silber v Ozen Wholesalers (Pty)
Ltd 1954 (2) SA 345 at 353 that:
“In this regard the phrase “good cause” has been interpreted to mean:
“…the defendant must at least 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”.
[18] Simila rly, Adams AJ in Groenewald v National Transport Movement [2024]
ZALCJHB 35 at para 4 contextualised the showing of ‘good cause’ for the delay and held:
“The Courts have endorsed the principle that where there is a delay with no
reasonable, satisfactory, and acceptable explanation for the delay,
condonation may be refused without considering prospects of success, and
to grant condonation where the delay is not explained may not serve the
interests of justice. The expeditious resolution of […] disputes is a
fundamental consideration. ”
[19] In this case, on paper and during argument, the Counsel for the Applicant boldly
stated that he had an excellent explanation that is indicative of the principle of ‘ good
cause’ for the delay because ‘h e is an organ of state that is entrusted with public funds
for the residence of the City of Johannesburg’. Such status cautions him to thread
carefully in engaging in frivolous litigation. The Applicant contended that due to non-
availability of the Counsel who dealt with the case and the consequent result of receiving
the legal advice on 25 March 2025, the late submission of the notice of the leave to appeal
was beyond his control under the circumstance because he finally served the notice. The
Applicant, in the absence of the original Counsel, I doubt that he has a limited legal capacity in extending the net wide to eliminate any possibility for the late filing of the notice
of the leave to appeal. The non- availability of the Counsel that dealt with this matter is a
flawed justification of the reason for the delay. This application falls flat on this ground
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alone. I believe that the Applicant as an organ of state failed to keep up with the
constitutionalised responsibility that is attached to his status as a local sphere of
governance in the regulation of his administrative processes. This reason ‘waters down’
any legitimacy that could have justified the condonation for the late filing of the notice of
the leave of appeal. It is my opinion that for an accountable system of administrative
regulation, it is prudent for the Applicant to ensure the ‘ watertight systems ’ on
administration so that his own processes do not ‘slip through the fingers’. This Court is
being put in an ‘ awkward ’ position of having to compromise and bend the knees for the
Applicant’s internal processes that do not constitute any legal basis for the determination of the adequacy of the proffered reasons.
[20] This Court is empowered to grant condonation that was sought by the Applicant
provided it is satisfied that ‘good cause’ has been shown to exist. In this case, the
Applicant ’s internal consultative processes should not have been taken at the prejudice
of the Respondent.
[21] As deduced from Conradie AJ and Adams AJ above, it is evident that the bar has
been set very high to establish the reasonableness of the explanation of the delay. The
granting of the application for condonation is not a ‘mere’ principle that is designed to flout
the content of the basic principle regulating the system of the Court’s discretion in its
adjudicative role. The unreasonableness of the delay, which is then attempted to be
justified by an application for condonation hinders the finality of the matter and compromises the quality of access to justice by bringing a matter that could not have seen
the court’s doors.
[22] The Applicant further contended that he should not be faulted for the delay
because it was due to ‘an administrative error ’ on his part . In this application, it is my
accorded view that the administrative processes are a foundation upon which to
determine the efficacy of any institution, including the Applicant. The reliance on the error
on his administrative processes does not constitute a justified lack of adherence to the
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basic principles that regulate his own system of exercising authority as a sphere of
governance.
[23] Let me reiterate, I am motivated by the Applicant’s own endorsement that ‘he is an
organ of state that is entrusted with public funds,’ which entails that as a local sphere of
governance , he is foundational to an effective system of democratic governance. The
Applicant is what I refer to as an ‘agent’ of government that is closest to the public and
plays a fundamental role in the democratisation of the country. Such characterisation is
drawn from the objects of the local sphere of governance as envisaged in section 152(1) of the Constitution of the Republic of South Africa 1996 (Constitution) that is meant ,
amongst others , the provision of a “democratic and accountable government for local
communities ”. This object is important in the context of this case particularly the
Applicant’s own affirmation as an organ of state that is entrusted with the effective use of public funds. T oday, the Applicant must uphold public confidence and apply his own laws
and regulations for the efficient use of public resources . I found it difficult with the
justification of the delay to be due to ‘an administrative error’. I am of the considered view
that this is not a reasonable explanation for the delay particularly on his expression before this Court that ‘ he is an organ of state’ .
[24] I find the Applicant’s reasons for failure submitting the notice of the application for
leave to appeal within the prescribed time frames of this Court unreasonable. Although
the explanation tendered by the Applicant for the period of delay attempted to provide
accuracy on the cause of the delay, such reasons are flawed and far from convincing to
put this Court in a better understanding of the reasons for the delay. I am not satisfied that
the reasons for the delay are all- encompassing and amount to the abuse of this Court. In
the circumstances, it does not serve any purpose to deal with the merits of the application for leave to appeal as intended in PART B because the application was made fatal by the
late submission alone.
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COSTS
[25] This Court is not to move from the basic principle on the exercise of judicial
discretion regarding the awarding of costs. Both Parties are not to be faulted for bringing and defending this matter before this Court. The Applicant prayed for costs against the
Respondent and the latter for attorney and client scale costs to deter the Applicant from
any future frivolous litigation. It is my considered view that without laws being tested in
courts of laws including this one, the development of principles regulating the area of law
would limit the quality of an interpretative approach and advancement of the sai d
principles with the consequent result of compromising the core content of the right to access the courts as envisage d in section 34 of the Constitution. The costs of this
application would be indicated as they appear below.
ORDER
[26] Under the circumstances, it is ordered as follows:
[26.1] T he application for condonation is dismissed.
[26.2] The costs of this application are on a party and party scale on Scale B in
terms of section 69 including the costs of one Counsel where so employed.
__________ ____________
N NTLAMA- MAKHANYA
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Delivery: This judgment is issued by the Judge whose name appears herein and is
submitted electronically to the parties /legal representatives by email. It is also uploaded
on CaseLines and its date of delivery is deemed 29 May 2025.
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Date Heard : 19 May 2025
Date Delivered : 29 May 2025
Appearances:
Counsel for the Applicant: Advocate S Dlali
Instructing Attorneys: K Matji and Partners
Counsel for the Respondent: Advocate HW Theron
Instructing Attorneys: HW Theron INC