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11-02-2025
am talking loudly, but if you are not able to hear me, please
give me an indication.
Thank you. The applicant's action against the City
of Johannesburg arises out of injuries she allegedly
sustained when she fell into an open manhole on the 27th of
September 2014.
The applicant purportedly delivered a notice in
terms of the Act on the 26th of January 2016. I say
purportedly because there is a dispute between the parties
regarding whether the notice was in fact sent, given that the 10
relevant post office slip does not contain any counter stamp
or signature or the initials of a delivery officer.
Be that as it may, it is common cause between the
parties that the notice, in the event that it was delivered,
was delivered ten months out of time.
On the 5th of April 2016, the applicant issued
summons against the respondent, the defendant, in the
action. The defendant defended the action and filed a
special plea of non -compliance with the Act on the 3rd of
April 2018. 20
Almost five years later, on the 20th of June 2023,
the present application for condonation was launched. The
application was defended, and an answering affidavit was
filed by the respondent and thereafter a replying affidavit
was filed by the applicant.
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11-02-2025
Thereafter, the application for condonation was set
down and heads of argument were filed by both sides. After
heads of argument had been filed, the applicant purported
on the 24th of November 2024, to file a supplementary
founding affidavit.
To be precise, the supplementary founding affidavit
was served on the 24th of November 2024 but only filed on
the 10th of January 2025.
In the supplementary founding affidavit, the
applicant purports to augment the original founding affidavit 10
by, for example, dealing with the issue of prospects of
success, which had not been dealt with at all in the original
founding affidavit.
The respondent objected to the admission of the
supplementary founding affidavit and the first question
before me is accordingly whether leave ought to be granted
for the admission of the supplementary founding affidavit.
It is trite that a party seeking the Court's leave to
file a further affidavit must explain why the facts or
information had not been put before the Court at an earlier 20
stage.
In exercising the Court's discretion in relation to
whether or not to grant leave in this regard, the Court will
consider the following factors. The reason the evidence
was not produced timeously.
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11-02-2025
The degree of materiality of the evidence. The
possibility that it may have been filed to relieve the pinch of
the shoe. The balance of prejudice. The stage of litigation.
The general need for finality in judicial
proceedings, to name just some of the various factors that
the Court will take cognisance of.
Now, in this case, the applicant has failed to
provide the Court with an explanation of why the facts and
information in the supplementary affidavit could not have
been put before the Court at an earlier stage. 10
And have failed to address the Court in relation to
the relevant factors which I have set out above. In the
absence of any such explanation, there is simply no basis
for me to exercise my discretion and leave to admit the
supplementary founding affidavit is accordingly refused.
Turning then to the merits of the condonation
application, which fall to be determined without reference to
the contents of the supplementary founding affidavit.
The condonation application is, in my view, fatally
defective for two reasons. Firstly, it fails to deal at all with 20
prospects of success, an essential requirement of a
condonation application.
See in this regard Melanie v Santam Insurance
Company Limited 1962 (4) SA 531 Appellate Division, as it
then was. And secondly, the applicant waited five years
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11-02-2025
before bringing this condonation application with no
explanation in this regard whatsoever.
There is a duty on litigants to bring their
applications for condonation as soon as possible, as soon
as reasonably possible, at the very least, after they become
aware of the need for an application for condonation , and to
provide an explanation to the Court where they have failed
to do so.
See in this regard Madinda v Minister of Safety and
Security, 2008 (4) SA 312 (SCA ) at paragraph 6. Counsel 10
for the applicant accepted the existence of such a duty, and
accepted further that there was, that no explanation had
been proffered for the delay of five years in the bringing of
this condonation application.
That is matter that ought to have been included in
the condonation application in the Court's view, quite apart
from the fact that prospects of success had not been dealt
with at all.
For those reasons I make the following order. The
application for condonation is dismissed with costs on scale 20
B.
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