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[2025] ZAFSHC 361
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Tlali obo K T v MEC for Health and Social Development: Free State (3739/2019) [2025] ZAFSHC 361 (20 November 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
Reportable
Case no: 3739/2019
In the matter between:
JACOB
TLALI obo K T
APPLICANT
and
MEC FOR HEALTH AND
SOCIAL DEVELOPMENT:
FREE
STATE
RESPONDENT
Neutral
Citation:
Tlali obo K T
v MEC for Health and Social Development: Free State
(3739/2019) ZAFSHC 361 (20 November 2025)
Coram:
OPPERMAN
J
Heard
:
17 April 2025
Delivered
:
The judgment
was handed down electronically by circulation
to the parties’
representatives by email and released to SAFLII. The date and time
for hand down is deemed to be 20 November
2025 at 15h00.
Summary:
Condonation - Institution of Legal Proceedings
against Certain Organs of State Act 40 of 2002 – costs –
discretion of
the court – unopposed condonation application.
ORDER
1
The applicant’s non-compliance with s
3(1) of the Institution of Legal Proceedings against Certain Organs
of State Act 40
of 2002 is condoned.
2
Each party to pay their own costs.
JUDGMENT
Opperman J
[1]
The applicant seeks condonation in terms of
the Institution of Legal Proceedings against Organs of the State Act
40 of 2002 (the
Act). The respondent did not oppose the relief sought
in prayers 1 or 2 of the notice of motion. The respondent is opposing
the
relief sought by the applicant on the aspect of costs only.
[2]
The applicant claims a costs order on
attorney and client scale. They base their arguments on the fact
that:
‘
The
respondent had ample opportunity to consent in writing to the late
notice as envisaged in section 3(1)(b) yet opted not to do
so. This
would have thwarted the need for this application and as such the
costs occasioned by this, especially in light of an
apparent
opposition to the application in the main, the failure to do so
should be frowned upon and accordingly bolsters the fact
that a costs
order should be made in favour of the applicant.’
[1]
[3]
It is also a reality that condonation
applications in terms of the Act, is dealt with on the following
basis:
‘
[25]
… Ordinarily, in applications for condonation for
non-observance of court procedure, a litigant is obliged to seek the
indulgence of the court whatever the attitude of the other side and
for that reason will have to pay the latter's costs if it does
oppose, unless the opposition was unreasonable. I doubt that this is
the correct approach in matters such as the present, as an
application for condonation under the 2002 Act has nothing to do with
non-observance of court procedure, but is for permission
to enforce a
right, which permission may be granted within prescribed statutory
parameters; and such an application is (in terms
of s 3(4)) only
necessary if the organ of state relies on a creditor's failure to
serve a notice.
In
the circumstances there is much to be said for the view that where an
application for condonation in a case such as the present
is opposed,
costs should follow the result.’
[2]
[4]
The argument for the respondent, on the
other hand, carries veracity. This is what they have to say:
a)
The applicant from inception of the
application claimed for punitive costs against the respondent in his
Notice of Motion, thereby
compelling the respondent to oppose the
costs order sought in litigation.
b)
The opposition levelled against the costs
order sought was brought about by the applicant. In the absence of
the punitive order
sought, the respondent would not have opposed the
application on this basis, or at all.
c)
The respondent did not force the applicant
to launch the current application, the applicant elected to issue the
current application
due to its apparent non-compliance with the
statutory notice requirements of the Act.
d)
The respondent submits that the applicant
was responsible for the failure to comply with the Act and was also
responsible for the
current opposition of the application in respect
of the costs order sought. The respondents want for the applicant to
pay the costs
of the application and the costs of the respondent's
opposition.
e)
The
respondent concludes that the applicant’s reliance on the
Supreme Court of Appeal judgements of
Lakay
[3]
and
Shange
[4]
is misplaced as the matter in
casu
is clearly distinguishable. Punitive costs (or any costs) were also
not awarded in the mentioned judgements and is unwarranted
in
unopposed applications.
[5]
The law has developed some clear principles in cases of this
nature. The parties gave an extensive exposé of the caselaw in
their heads of argument, and I will not repeat it. Suffice it to
summarise that where the applicant’s delay is adequately
explained, and where condonation is granted, courts often order each
party to pay its own costs, especially if the delay was not
excessive
and the organ of state did not suffer prejudice. Sometimes courts
even award costs to the applicant, especially if the
organ of state
unreasonably refused consent to late notice or opposed the
condonation without merit. If condonation is refused
the applicant is
usually ordered to pay costs.
[6]
The merits of this case on the costs direct
that each party must pay their own costs. Both parties are
responsible for the litigation.
(The respondent did not oppose the
condonation.)
Order
[7]
In the result the following orders are
made:
1
The applicant’s non-compliance with s
3(1) of the Institution of Legal Proceedings against Certain Organs
of State Act 40
of 2002 is condoned.
2
Each party to pay their own costs.
M OPPERMAN
JUDGE OF THE HIGH
COURT
Appearances
For
applicant:
I
Sander
Instructed
by:
VZLR
Incorporated Attorneys,
Pretoria
c/o
Du Plooy Attorneys
Bloemfontein
For
respondent:
DR
Thompson
Instructed
by:
Office
of the State Attorneys,
Bloemfontein.
[1]
Para 8 of the replying affidavit.
[2]
Premier
of the Western Cape Provincial Government NO v Lakay
(184/11)
[2011] ZASCA 224
;
2012 (2) SA 1
(SCA);
[2012] 1 All SA 465
(SCA) (30
November 2011). See also
MEC
for Education, KZN v Shange
(529/11)
[2012] ZASCA 98
;
2012 (5) SA 313
(SCA) (1 June 2012) para 24.
[3]
Op
cit fn 2.
[4]
Op
cit fn 3 para 24.