Brief Summary

Civil Procedure — Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 — Condonation application — Applicant sought condonation for late filing of statutory notice following the death of her husband — Notice delivered seven years after the prescribed period — Whether good cause established and absence of prejudice to the MEC demonstrated — Court found that the applicant had shown good cause for the delay and that the MEC would not suffer unreasonable prejudice; thus, condonation granted and the appeal upheld.

Comprehensive Summary

Summary of Judgment

Introduction

This was an application in the Supreme Court of Appeal of South Africa (SCA) for special leave to appeal and, if leave were granted, an appeal on the merits concerning condonation for the late service of a statutory notice required before instituting legal proceedings against an organ of state. The matter arose under s 3(4) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.

The applicant was Martha Johanna Petronella Rossouw (Ms Rossouw), acting in relation to a claim pursued on behalf of her two minor children for loss of support arising from the death of their father. The first respondent was Blignaut & Wessels, Ms Rossouw’s former attorneys, cited because their conduct formed part of the explanation for the delay. The second respondent was the MEC: Police, Roads and Transport for the Province of the Free State (the MEC), the organ of state against whom the underlying delictual claim was instituted.

Procedurally, the MEC raised a special plea of non-compliance with the Act’s notice requirements in the underlying action. Ms Rossouw then brought an application for condonation for late service of the statutory notice. The High Court dismissed the condonation application. An appeal to the Full Court of the Free State Division was dismissed. Ms Rossouw sought special leave to appeal to the SCA under the Superior Courts Act 10 of 2013.

The SCA produced two judgments. The first judgment (Modiba AJA, with Vally AJA concurring) would have dismissed the special leave application. The second judgment (Makgoka JA, with Mbatha and Weiner JJA concurring) constituted the majority and resulted in the granting of special leave and the upholding of the appeal, with condonation being granted.

The general subject-matter of the dispute concerned whether Ms Rossouw satisfied the statutory requirements for condonation, namely good cause and the absence of unreasonable prejudice to the MEC, and whether the circumstances justified special leave.

Material Facts

On 29 May 2011, Ms Rossouw’s husband (the deceased) was involved in a motor vehicle collision in the Free State. He sustained severe injuries and died on 30 May 2011. Ms Rossouw and their two minor children had been dependent on the deceased.

Shortly after the death (approximately three weeks later), Ms Rossouw instructed Blignaut & Wessels to pursue damages for loss of support. It later emerged that those attorneys proceeded against the Road Accident Fund, rather than against the organ of state alleged to be responsible for the maintenance of the road.

Under s 3(2)(a) of the Act, the statutory notice had to be served within six months of the debt becoming due. On the facts accepted in the litigation, the debt became due on 30 May 2011, so the notice was required to be served by 29 November 2011. No notice was served within that period. A notice was only served on the MEC on 13 December 2018, after Ms Rossouw’s current attorneys advised that the MEC was the correct defendant and that a statutory notice was required.

Summons against the MEC was issued on 23 April 2019 and served on 7 May 2019. The MEC delivered a plea on 19 September 2019 raising, among other defences, a special plea that the statutory notice had not been served timeously. Ms Rossouw launched a condonation application on 30 January 2020, approximately four months after the special plea.

The parties were agreed that the minor children’s claim had not prescribed, and thus the first jurisdictional requirement in s 3(4)(b)(i) was not in dispute. The material disputes concerned whether good cause had been shown for the late notice and whether the MEC would suffer unreasonable prejudice if condonation were granted.

In support of prospects on the merits, Ms Rossouw relied on material including a police accident report with photographs and a sketch plan, an inquest report, and an engineer’s report. Her case was that the accident was caused by the poor condition of the road (including potholes) and the absence of warning signs, allegedly attributable to the MEC’s failure properly to maintain the road.

In opposing condonation, the MEC contended that the delay was extreme, insufficiently explained, and that the department would be prejudiced because the long lapse of time could affect the availability of witnesses and records.

Legal Issues

The SCA was required to determine, first, whether Ms Rossouw established special circumstances warranting special leave to appeal in addition to reasonable prospects of success, in accordance with the SCA’s approach to special leave.

Second, on the merits, the central statutory questions were whether Ms Rossouw satisfied the requirements for condonation in s 3(4)(b) of the Act, namely whether good cause existed for the failure to serve the notice timeously and whether the MEC was not unreasonably prejudiced by that failure, given that prescription was not in issue.

These questions involved a mixture of application of law to fact and value judgment. The court had to assess the adequacy of the explanation for delay, the sufficiency of the prima facie case (prospects of success) for purposes of condonation, and whether claimed prejudice was established as unreasonable in the statutory sense.

A further issue, as treated in the majority judgment, was the relevance of constitutional considerations, particularly the best interests of children in s 28 and access to courts in s 34, as contextual factors in the condonation discretion, without the constitutionality of the Act being directly challenged.

Court’s Reasoning

The majority judgment (Makgoka JA) approached the matter by setting out the three jurisdictional factors in s 3(4)(b) and applying the established approach that these factors must be weighed in a balanced manner, consistent with the framework described in Madinda v Minister of Safety and Security. Since the children’s claim had not prescribed, the analysis focused on good cause and unreasonable prejudice.

On good cause, the majority treated the main delay as attributable to the conduct of Ms Rossouw’s attorneys rather than to any wilful default by Ms Rossouw. It accepted that Ms Rossouw instructed attorneys soon after the death and that the failure to serve the statutory notice timeously was connected to the attorneys having identified and pursued the wrong defendant. In evaluating whether a litigant should be held responsible for attorney defaults, the majority relied on the distinction drawn in Saloojee and Another v Minister of Community Development and Regal v African Superslate (Pty) Ltd, concluding that the present facts fell outside the category of a litigant who, being aware of the need for condonation, sits passively by in the face of protracted and obvious delay. The majority considered that it was difficult, on the facts, to attribute the non-service of the notice to Ms Rossouw’s personal fault.

On prospects of success, the majority held that the courts below misdirected themselves by assessing the evidence as though determining the merits at trial. It emphasised that at the condonation stage, the applicant need not prove the case on a balance of probabilities; a prima facie case and a bona fide intention to pursue the action were treated as sufficient. The majority considered that the photographic and documentary material (including police documentation) reflected potholes and road conditions in the area where the vehicle left the roadway, and that an engineer’s report provided an opinion linking the accident to road conditions and the absence of warning signs. It held that criticisms as to admissibility or ultimate weight were matters for trial management and evidential rules, rather than decisive at the condonation stage. In this context, the majority referred to Rule 36(10) as governing the tendering of photographs and similar evidence at trial.

The majority also considered that the children’s claim might succeed upon proof of even a small degree of negligence by the road authority, and it rejected the conclusion that the claim lacked merit at the threshold stage.

On unreasonable prejudice, the majority held that the MEC’s asserted prejudice was expressed in general and speculative terms (documents “may” be lost, officials “may” have left, memories “most likely” faded) rather than being grounded in identified, concrete prejudice attributable to the late notice. It treated Premier, Western Cape Provincial Government NO v Lakay as authority that prejudice must be evaluated with reference to the statutory scheme and that alleged prejudice should not be assumed without a basis laid by the organ of state. The majority further relied on the approach in Madinda that, although the creditor bears the onus to establish absence of unreasonable prejudice, the relevant facts regarding prejudice often lie within the organ of state’s knowledge, and a court should be slow to infer prejudice where the organ of state has not substantiated it. It reasoned that certain key materials (the police report, an eyewitness statement, and the inquest report) were available, and that the department, as road authority, was expected to have or to have access to maintenance records, with the MEC not engaging meaningfully with that assertion. The majority also noted that the MEC’s plea on the merits was a bare denial, and concluded that, in the circumstances, unreasonable prejudice was not established.

The majority addressed the four-month delay between the special plea and the condonation application and treated it as attributable to the attorneys, concluding that it should be condoned when considered alongside the other factors, including the absence of unreasonable prejudice.

In addressing special leave, the majority applied the test in Cook v Morrison and Another, accepting that special circumstances existed because of the matter’s importance to the minor children and the need to avoid injustice given the majority’s view that the courts below had erred in evaluating prospects and prejudice. It additionally treated the constitutional context as relevant, emphasising the need for independent consideration of the children’s interests under s 28(2) and the significance of access to courts under s 34, referring to Constitutional Court jurisprudence including AB and Another v Pridwin Preparatory School and Others and Le Roux and Another v Johannes G Coetzee and Seuns and Another.

The minority judgment (Modiba AJA) took the opposite view on the explanation for delay and prospects of success. It regarded parts of the delay as unexplained, placed weight on the absence of strong prospects, and considered that the explanation did not justify absolution from attorney failures under Saloojee. It would have dismissed special leave and the appeal. The majority did not adopt that approach and instead set aside the Full Court’s order.

Outcome and Relief

The SCA (majority) granted special leave to appeal, upheld the appeal, and set aside the Full Court’s order. It substituted an order upholding the appeal in the Full Court and replacing the High Court’s dismissal of condonation with an order granting condonation for failure to serve the statutory notice within the period prescribed by s 3(2)(a) of the Act.

The SCA ordered that the appeal costs be paid by the MEC, including the costs of two counsel, and ordered the second respondent to pay the costs of the condonation application.

Cases Cited

Cook v Morrison and Another [2019] ZASCA 8; [2019] 3 All SA 673 (SCA); 2019 (5) SA 51 (SCA).

Savannah Country Estate Homeowners Association v Zero Plus Trading 194 (Pty) Ltd and Others (773/2022) [2024] ZASCA 40.

Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A).

Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd [2010] ZASCA 27; 2010 (4) SA 109 (SCA); [2010] 3 All SA 537 (SCA).

Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC).

Madinda v Minister of Safety and Security [2008] ZASCA 34; [2008] 3 All SA 143 (SCA); 2008 (4) SA 312 (SCA).

Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (A).

Saloojee and Another v Minister of Community Development 1965 (2) SA 135 (A).

Mugwena and Another v Minister of Safety and Security 2006 (4) SA 150 (SCA); [2006] 2 All SA 126 (SCA).

AB and Another v Pridwin Preparatory School and Others [2020] ZACC 12; 2020 (9) BCLR 1029 (CC); 2020 (5) SA 327 (CC).

CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC).

Premier, Western Cape Provincial Government NO v Lakay [2011] ZASCA 224; 2012 (2) SA 1 (SCA); [2012] 1 All SA 465 (SCA).

Pillay v Krishna and Another 1946 AD 946.

Le Roux and Another v Johannes G Coetzee and Seuns and Another [2023] ZACC 46; 2024 (4) BCLR 522 (CC); 2024 (4) SA 1 (CC).

S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC); 2007 (2) SACR 539 (CC).

Rossouw v MEC Police, Roads and Transport for the Province of the Free State [2020] ZAFSHC 179.

Legislation Cited

Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.

Superior Courts Act 10 of 2013.

Constitution of the Republic of South Africa, 1996.

Rules of Court Cited

Uniform Rules of Court, Rule 36(10)(a).

Held

The majority held that Ms Rossouw satisfied the jurisdictional requirements for condonation under s 3(4)(b) of the Act. The children’s claim had not prescribed, the delay in serving the notice was sufficiently explained in the context of attorney error and the circumstances of the litigant, the claim disclosed reasonable prospects at the threshold stage appropriate to condonation, and the MEC failed to establish real, unreasonable prejudice flowing from the late notice rather than relying on speculative assertions.

The majority further held that special circumstances existed to justify special leave to appeal, particularly given the importance of the matter to the minor children and the need to vindicate access to courts in circumstances where the lower courts’ approach to prospects and prejudice was treated as erroneous.

LEGAL PRINCIPLES

The judgment applied the principle that condonation under s 3(4)(b) requires satisfaction of all three jurisdictional elements, and that the enquiry into good cause is a holistic one, informed by factors including the explanation for delay, bona fides, responsibility for delay, prospects of success, and the fairness of granting relief between the parties, as articulated in Madinda v Minister of Safety and Security.

It applied the principle that attorney default does not automatically excuse a litigant, but the extent to which the litigant is bound by attorney neglect depends on the facts, with Saloojee and Another v Minister of Community Development identifying limits to absolution and Regal v African Superslate (Pty) Ltd illustrating circumstances where a litigant may be blameless.

It applied the principle that unreasonable prejudice under the Act must be actual and substantiated, not speculative. Although the applicant bears the onus to establish absence of unreasonable prejudice, courts should be slow to assume prejudice where the organ of state does not lay a factual basis for it, consistent with Madinda and the approach to prejudice discussed in Premier, Western Cape Provincial Government NO v Lakay.

It applied the principle that the standard for assessing prospects of success for purposes of condonation is not a final determination on the merits, and that evidential admissibility and weight are generally matters for trial; at the condonation stage a prima facie case and bona fide intention to proceed are relevant considerations.

It applied the test for special leave to appeal requiring more than reasonable prospects of success and the existence of special circumstances, as stated in Cook v Morrison and Another, and treated the constitutional context of children’s interests (s 28(2)) and access to courts (s 34) as relevant considerations in evaluating whether refusal of leave and condonation would produce injustice in the circumstances.

Rossouw v Blignaut and Wessels and Another (1234/2023) [2025] ZASCA 146 (7 October 2025)