2


1.1. “That the Applicant is granted leave to institute legal proceedings sounding in
damages against the Respondents;

1.2. The Respondents shall pay the costs on a scale as between party and party on
Scale C, jointly and severally and in solidum, the one paying the other to be
absolved.”

2. On 24 July 2025, the Resp ondents’ filed a Request for Reasons (“ the Request for
Reasons”) for the grant of this Order. In filing the Request for Reasons, the Respondents
placed reliance on the provisions of Rule 49(1)(c).

3. That sub-rule provides as follows:

“When in giving an order the court declares that the reasons for the order will be furnished
to any of the parties on application, such application shall be delivered within 10 days after
the date of the order”

4. At the time of granting the Order, the Respondents elected not to brief Counsel to appear.
In point of fact, when handing the Order down, I did not indicate any intention to provide
reasons at a later time. Hence, the Respondents’ invocation of Rule 49(1)(c) is somewhat
misguided.

5. Moreover, the Request for Reasons was only filed on Courtonline on 24 July 2025, more
than a month after the Order was handed down. 1It is clear that the Request for Reasons
has been filed out of time, and there is no accompanying application for condonation.


1 The Request for Reasons was not bundled into Caselines, and was only emailed to me on 1 August 2025. I did
not have access to it before then.

3

6. Notwithstanding the lateness and the irregularity of the Request for Reasons , I have
decided that in the interests of transparency and judicial accountability, to provide the
reasons so requested. It is to this end that this judgment is penned.

6.1. Why the matter proceeded in the unopposed motion court

6.1.1. On 8 May 2025 the Respondents filed a Notice of Intention to
Oppose2

6.1.2. The Respondents did not file an Answering Affidavit;

6.1.3. The Respondents did not file a Notice in terms of Rule 6(5)(d)(iii)
signifying that they intended to raise any question of law;

6.1.4. The Respondents did not file Heads of Argument;

6.1.5. The Respondents did not file a Practice Note;

6.1.6. The Respondents did not brief Counsel to oppose the application on
the day.


2 Caselines 03-1, 03-2

4

6.1.7. In point of fact, other than filing a formal Notice of Intention to
Oppose, the Respondents did nothing whatsoever thereafter to
actually oppose the application, notwithstanding having been served
with due and proper notice of set down on 3 June 2025.
3

6.1.8. In the result, by the time the matter came before me in open court
on 20 June 2025, the Respondents had all but abandoned their
opposition to the application. The Respondents took no issue with
the factual matrix testified to by the Applicant in the FA. Neither did
they take any points in limine.

6.1.9.
The Applicant, on the other hand, was duly represented in court by
his attorney of record, Mr Zungu, who moved for the Order in the
terms expressed above. In the circumstances, it would have been
manifestly unfair and unjust to have denied the Applicant a hearing ,
by refusing to entertain the application in the unopposed motion
court. There was also no reason to burden the opposed motion court
with the matter given (as demonstrated above) that there was no
opposition on the day, either in the form of legal representation or
even any oppositional papers whatsoever.

6.1.10. Most notably, the Applicant’s attorney was well within his rights to
enroll the application on the unopposed motion roll. This is so
because an unopposed motion is defined in paragraph 9.9.1 of the
Practice Manual of this Division, as follows:


3 Caselines 05-1, 05-2

5

“9.9.1 Definitions

1. For purposes of this directive ‘unopposed motions’ shall
include –
1.1 all motions and applications in which the respondent has failed to
deliver an answering affidavit and has not given notice of an intention
only to raise a question of law (Rule 6(5)(d)(iii) or a point in limine ”.
(Emphasis included)

6.1.11. The Respondents’ question in the Request for Reasons as to “why the
matter proceeded on the unopposed motion roll when it was
opposed”, is thus based on the false premise that the application was
actually opposed. It also begs the real question: why did the
Respondents not oppose the application, either in the papers or in
open court?

6.2. Why leave to institute action against the Respondents was granted

6.2.1. The Notice of Motion (“NOM”) and the Founding Affidavit (“ FA”)
were served:

6.2.1.1. on the First and Second Respondents on 11 March
2025
4;


4 Caselines 02-1 to 02-4

6

6.2.1.2. on the Third Respondent on 18 March 20255.

6.2.2. As signified above, Notice of Intention to Oppose was filed by the
State Attorney on behalf of all three Respondents, so the application
definitely came to the notice of the Respondents.

6.2.3.
The full relief sought by the Applicant in the NOM was as follows:

“1. An order directing the 3 rd Respondent, Compensation
Commissioner to publish to the Applicant’s attorneys of record and to
the applicant’s employer a date for the hearing of the applicant’s
objection in terms of section 91 of the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 as amended, within 10 (ten)
days of service of this order.”

“2. In the event that the 3rd Respondent fails to comply with paragraph
1 (one) of this order, the Applicant is granted leave to institute legal
proceedings for a claim sounding in damages against the 1st, 2nd and 3rd
Respondent.” (sic)

“3. The Respondent to pay the costs on a scale as between party and
party Scale C.”

“4. Further and/or alternative relief”.

6.2.4.
At the hearing, Mr Zungu abandoned the relief sought in prayer 1,
and moved for an order in terms of prayers 2 and 3.

5 Caselines 02-6

7


6.2.5. The explanation for this was set forth in the Practice Note 6 filed by
Mr Zungu on behalf of the Applicant in which the following was
stated:

6.2.5.1. “RELIEF SOUGHT BY THE APPLICANT:
The Third Respondent has since partially resolved the
matter by compensating the Applicant for his permanent
disability, albeit inadequately. Accordingly, the Applicant
now seeks an order granting leave to institute legal
proceedings for a claim sounding in damages arising from
the repercussions of the unreasonable delay in resolving
the matter”

6.2.6. Mr Zungu also provided the following background information in his
Practice Note 7:

“BACKGROUND
On or about the 03rd of March 2025, the Applicant caused a Notice of
Motion to be issued out of this court wherein amongst other prayers,
the Applicant is requesting. An order directing the 3rd Respondent,
Compensation Commissioner to publish to the Applicant’s Attorneys
of record and to the applicant’s employer a date for the hearing of the
applicant’s objection in terms of section 91 of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 as amended. In
the event that the 3rd Respondent fails to comply with paragraph 1
(one) of this order, the Applicant is granted leave to institute legal

6 Caselines 06-5 to 06-9
7At paragraph 9, Caselines 06-6 to 06-8

8

proceedings for a claim sounding in damages against the 1st, 2nd and
3rd Respondents.

On or about the 11th of March 2025, the notice of motion and
founding affidavit were served on the First Respondent’s personnel as
it will appear on the Sheriff’s Return of Service, which is filed at 02 -
0002 on caselines.

On or about the 11th of March 2025, the notice of motion and
founding was served on the Second Respondent’s personnel as it will
appear on the Sheriff’s Return of Service, which is filed at 02-0001 on
caselines.

On or about the 18th of March 2025, the notice of motion and
founding was served on the Third Respondent’s Legal Services
Department personnel as it will appear on the Sheriff’s Return of
Service, which is filed at 02-0003 on caselines.

On or about the 15th of April 2025, the Applicant’s attorneys received
correspondence from the third Respondent, notifying the applicant
that a date has been scheduled for the hearing of the Applicant’s
objection to the commissioner’s refusal to compensate the applicant.

On or about the 25th of April 2025, the notice of motion and founding
affidavit was served on the Respondents' legal representatives, the
state attorney, as it will appear on the Sheriff’s Return of Service,
which is filed at 02-0004 on caselines.
8


8 This is erroneous. As is set out in paragraph 6.2.1 supra, the NOM and the FA were served by the
Sheriff on the Respondents on 11 and 18 March 2025, respectively

9

On or about the 08th of May 2025, the Respondents' attorneys served
the Applicant’s attorneys with the Respondents’ Notice of Intention to
oppose. The said notice is filed at 03- 0001 on caselines.

On or about the 13th of May 2025, the Applicant’s attorneys received
correspondence from the third Respondent, notifying the applicant
that the date scheduled for the hearing of the Applicant’s objection
has been cancelled and the third Respondent has resolved to award
the Applicant 15% compensation.

On the 05th of June 2025, the 20 days within which the Respondents
were supposed to have served and filed their answering/opposing
affidavit expired without serving or filing the same.”


6.2.7.
It is thus apparent from the above quoted section of the Applicant’s
attorney’s Practice Note that the Applicant procured some form of
partial relief from the Respondents, only after service of the
application.

6.2.8.
The Applicant, in his FA, narrates the treatment which he received
from officials of the Third Respondent in relation to his Workmens
compensation claim which he lodged in terms of the Compensation
for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”), as
follows:

6.2.8.1. On 20 March 2024 the Third Respondent rejected the
Applicant’s claim, asserting that he had not suffered
permanent disablement
9;


9 FA Paragraph 9, Caselines 01-8

10

6.2.8.2. On 6 August 2024, the Applicant lodged an objection
against the Third Respondent’s decision, in the
prescribed manner in terms of Section 91 of COIDA10;

6.2.8.3. On 23 September 2024, the Applicant’s attorney
received a letter from an official of the Third
Respondent scheduling the section 91 objection hearing
for 10 October 2024
11;

6.2.8.4. On 2 October 2024, the Applicant’s attorney received an
email from an official of the Third Respondent stating
that the hearing could not proceed on 10 October 2024
after all, due to the unavailability of their Legal Officer
12;

6.2.8.5. On 20 October 2024, the Applicant’s attorney
addressed an email to the Third Respondent’s official
requesting a new hearing date be allocated
13;

6.2.8.6. On 20 November 2024, an official of the Third
Respondent responded to the Applicant’s attorney by
copying him on an email to a colleague requesting the

10 FA Paragraph 10 Caselines 01-8
11 FA Paragraph 11, Caselines 01-8, as read with annexure C at Caselines 01-24
12 FA Paragraph 12, Caselines 01-8 as read with annexure D1 at Caselines 01-25
13 FA Paragraph 14, Caselines 01-9 as read with annexure D3 at Caselines 01-27

11

latter to assist with the allocation of a hearing date as a
matter of urgency14;

6.2.8.7. On 28 November 2024, the Applicant’s attorney
addressed a follow up email to both employees of the
Third Respondent enquiring as to the allocation of a
hearing date. No response was received to this follow
up email
15;

6.2.8.8. On 10 January 2025, the Applicant’s attorney sent a
further reminder to the two officials at the Third
Respondent, asking for follow up on the allocation of a
hearing date. The Applicant’s attorney once again
received no response to this email 16. The content
thereof is apposite. It reads:

“Good afternoon
Compliments of the new year.
1. This is my third follow-up email, requesting a hearing
date to be allocated for this matter.
2. The delay in the finalization of this matter is
unacceptable.
3. As you are aware, our client continues to experience

14 FA Paragraph 14, Caselines 01-9 as read with annexure D3 at Caselines 01-27
15 FA Paragraph 15, Caselines 01-9 as read with annexure D4 at Caselines 01-28
16 FA Paragraph 16, Caselines 01-9 as read with annexure D5 at Caselines 01-29

12

significant strain due to the injuries sustained at work,
which subsequently led to his disability.
4. Kindly attend to this matter expeditiously.
Kind regards
SP Zungu”
6.2.9. The application was thereafter issued on 3 March 2025.

6.2.10. The Applicant asserts that the delay in allocating a hearing date by
the Third Respondent is an infringement of his right to claim
compensation in terms of Section 22(1) of COIDA.
17


6.2.11. The Applicant also alleges that the lack of finality in the
administration of his claim and consequent lack of access to medical
care and attention has resulted in him experiencing pain and
suffering, violation of dignity, humiliation, discrimination and
exclusion. I regard this state of affairs with particular concern, having
regard to the fact that the Applicant is a previously disadvantaged
person, and a blue collar worker, who was engaged in manual
labour.
18


17 FA Paragraph 17, Caselines 01-10
18 See the medical referral letter dated 9 July 2024 by Drs Hubert Edmond Foster and Dr Prenil Hira,
annexed as Annexure B4 to the FA, at Caselines 01-16

13

6.2.12. According to the Applicant’s attorney, per the information disclosed
in his Practice Note 19, yet another hearing was scheduled and then
cancelled by the Third Respondent, who did an about turn on the
repudiation of the claim, and ostensibly unilaterally finalized the
same by awarding to the Applicant only fifteen percent (15%) of the
quantum of his claim, sans a Section 91 hearing. This notwithstanding
the fact that a hearing was promised by the Third Respondent in its
letter dated 20 March 2024
20.

6.2.13. The Applicant, clearly aggrieved by this, and the entire chronology of
events outlined above, stil
l sought an order granting leave to the
Applicant to institute legal proceedings sounding in damages against
the Respondents, and for costs – but abandoned prayer 1 of the
NOM.

6.2.14. I granted such leave for the following reasons:

6.2.14.1. The Applicant’s uncontroverted version as per the FA 21
is that he was mistreated by the Third Respondent in
regard to the administration of his claim, and his Section
91 objection. Various appointments scheduled with
officials of the Third Respondent were cancelled
without reason, and he was delayed and frustrated in
the prosecution and quantification of his claim. It is
clear that had he not brought the application, he would
not have received even the fifteen percent (15%)

19 Caselines 06-7
20 The letter forms Annexure A to the FA, at Caselines 01-12
21 Caselines 01-6 to 01-29

14

compensation, which he ultimately did before the
application came before me;

Condonation in terms of The Institution of Legal Proceedings Against
Certain Organs of State Act, 40 of 2002

6.2.14.2. I am cognizant that the effect of the Order granting the
Applicant leave to institute legal proceedings against
the Respondents effectively condones the non-delivery
of a notice under Section 4(1) of the Institution of Legal
Proceedings Against Certain Organs of State Act, 40 of
2002 (“the Act”). Section 5(2) of the Act provides that
no legal proceedings may be served against an Organ of
State until a period of sixty (60) days has elapsed after
the date of delivery of a Notice under Section 4(1).
Section 3(4) of the Act states that a creditor may apply
to a court having jurisdiction for condonation for failure
to serve such a notice.

6.2.14.3. Section 3(4)(b) empowers a court to grant such
condonation if it is satisfied that:

6.2.14.3.1. the debt has not been extinguished by
prescription; and

6.2.14.3.2. good cause exists for the failure by the creditor;

15

6.2.14.3.3. the Organ of State was not unreasonably
prejudiced by the failure.22

6.2.14.4. Once these three requirements have been met, it has
been held that the discretion to condone
noncompliance with the provisions of the Act operates
according to established principles in such matters
23;

6.2.14.5. To my mind, in applying for leave to institute legal
proceedings sans such a notice in terms of the Act, the
Applicant has effectively applied for condonation. In
granting such leave, I have effectively granted the same.
In so doing, I have taken the following factors into
account:

6.2.14.5.1. The NOM and FA were served on the
Respondents on 11 and 18 March 2025
respectively
24. In both the NOM and the FA, the
Applicant makes it clear that he intends to
institute civil proceedings for damages against
the Respondents. The NOM and FA therefore,
to my mind, in and of themselves, constitute
notice as envisaged in terms of Section 3(1)(a)
of the Act, in substance, if not in form. A period
of sixty (60) days had already elapsed from date

22 The issue of prejudice was discussed in Ngwazi v Minister of Police
2024 JDR 4195. In that case, it was alleged that the respondent would not suffer any prejudice. These
allegations were met with a bare denial. The court found that indeed the respondent would not, in those
circumstances, suffer any prejudice and to the extent that any prejudice may exist, that such prejudice
would be unreasonable.
23 Madinda v Minister of Safety and Security [2008] 3 All SA 143 (SCA)
24 Caselines 02-2 to 02-8

16

of service of the NOM and FA until date of grant
of the Order. It seems to me to be superfluous,
and prejudicial to the Applicant to impose a
further delay of sixty (60) days before allowing
him to institute his contemplated legal
proceedings, especially in the circumstances
where, due to maladministration, his claim and
Section 91 objection has been frustrated,
delayed and cannibalized without any hearing;

6.2.14.5.2. The events of which the Applicant complains,
which ostensibly would give rise to any claim,
arose during the period 20 March 2024 to
January 2025
25. There can be no question of
the claim having been extinguished by
prescription;

6.2.14.5.3. I am of the view therefore that good cause
exists to grant condonation for the failure to file
a formal notice. In Madinda v Minister of
Safety & Security 26, the Supreme Court of
Appeal examined the concept of ‘good cause’
and found it to be more about considering of all
factors which bear on the fairness of granting
the relief. These factors may include prospects
of success, reasons for delay, sufficiency of the
explanation offered and the bona fides of the
applicant.

25 Caselines 01-8 to 01-29 and Caselines 06-6 to 06-8
26 [2008] 3 All SA 143 (SCA) at para 12

17


6.2.14.5.4. In Mokhemisa v Minister of Police 27, it was
held that it was not for the court to decide on
the merits of the case. Indeed, I do not seek to
do so in this judgment.

6.2.14.5.5. I exercise my discretion in favour of granting
leave to institute legal proceedings against the
Respondents, and in so doing am guided by
principles and natural justice. To this end, and
as signified above, there is much to be said for
the notion that the NOM and FA constitute
substantive compliance with the Act, which is
aimed at alerting Organs of State of impending
legal proceedings. This, the NOM and the FA
achieves. In addition, the unchallenged factual
matrix set out in the FA demonstrates the
extent to which the Applicant’s claim was
irregularly and unlawfully handled, to his
detriment. The Applicant, on his uncontested
version, has already been victimized by the
Third Respondent, a factor which I took into
account in granting leave to institute action
against the Respondents;


27 (1340/2023) [2023] ZAFSHC 436

18

6.2.14.5.6. The Respondents in this matter do not stand to
suffer unreasonable (or indeed any) prejudice
by the failure to file a formal notice. This is so
because the Respondents have been aware
since service of the NOM that the Applicant
intended to seek leave to sue, which is
ultimately the intention of Section 3(1) of the
Act. To this end, the following was stated by
Lewis JA in Minister of Safety and Security v De
Witt
28:

“[2] The Act is meant not only to bring
consistency to procedural requirements for
litigating against organs of State but also, it is
clear, to render them compliant with the
Constitution. The way in which it seeks to
achieve a procedure that is not arbitrary and
that operates efficiently and fairly both for a
plaintiff and an organ of State is to give a court
the power to condone a plaintiff's
noncompliance with procedural requirements in
certain circumstances. Thus access to courts is
facilitated, while at the same time procedures
against large governmental organisations that
need to keep their affairs in order are
regulated.”


28 2009 (1) SA 457 (SCA) at para 2

19

6.2.14.5.7. Had the Respondents persisted in their
opposition by filing Heads of Argument, or
relying on a point of law, and by briefing
Counsel to oppose the relief, I may have
considered the application in a different light
on the day. The fact is that they did none of
these things;

6.2.14.5.8. The relief is benign and it is not final in nature.
It does not seek to opine or in any way
determine either the Applicant’s right to claim
any damages or the quantum thereof. It simply
affords the Applicant leave to institute legal
proceedings, which the Respondents are of
course free to defend. The relief is accordingly
not prejudicial to the Respondents, who will be
afforded a full opportunity to ventilate their
defense to any action;

6.2.14.5.9. The grant of leave to institute legal proceedings
is merely interlocutory in nature in that it
facilitates further litigation.

6.3. Costs

6.3.1. The Request for Reasons is curiously highly specific. It seeks reasons
only in respect of paragraphs 1 and 2 of the Order, and not to the

20

order as to costs. This seems to signify that the Respondents do not
take issue with the costs order. Nevertheless, my reasons for
awarding party and party costs are:

6.3.1.1. There is no doubt that the Applicant would not have
achieved the award of even the fifteen percent (15%) of
his claim, which he did. Although he is clearly not happy
with this outcome, the fact is that the institution of the
application was necessary to achieve the reversal of the
repudiation of his claim, and the partial relief which has
flowed therefrom;

6.3.1.2. The Applicant has therefore been substantially
successful in the application, and there is no reason to
depart from the ordinary rule that costs follow the
result.
7. Conclusion

7.1. For all of the reasons advanced above, I granted the Order referenced in
paragraph 1 above.

________________________
HARRY NOCHUMSOHN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG

APPEARANCES
For the Applicant: Attorney SP Zungu of Zungu Attorneys
For the Respondents: No appearance