IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DMSION, CAPE TOWN)
JUDGMENT
In the matter between:
DE ZALZE WINELANDS GOLD ESTATE
HOME-OWNERS ASSOCIATION
And
STELLENBOSCH MUNICIPALITY
Not Reportable
Case No: 17526/2022
Applicant/ Plaintiff
Respondent/ Defendant
Neutral citation:
Coram Mgengwana; AJ
Heard 11 February 2026
Delivered 20 March 2026
Summary: Condonation Application - Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002 - Section 3(4) - Failure to
comply with section 3(4)(b)(i) and (ii).
Judgment handed down: This judgment is handed down electronically by
circulating to the parties or legal representatives by email. The date for the
handing down of the judgment is deemed to be 20 March 2026.
ORDER
1. The condonation application is granted with no order as to costs.
JUDGMENT
MGENGW ANA, AJ
Introduction
[1] This is an application made by the Applicant in terms of section 3( 4) of
the Institution of Legal Proceedings Against Certain Organs of State Act 40
of 2002 ("the Act") wherein the Applicant seeks an order from this Court
condoning its failure to comply with section 3(l)(a) read with section 3(2)(a)
of the Act. These provisions require any party that has intentions to institute
legal proceedings against an organ of State to serve a notice of its intention to
do so within a period of six months from the date on which the debt became
due. The application is opposed by the Respondent.
Chronological background to the application for condonation
[2] On 25 October 2019, the Applicant allegedly sustained damages
because of torrential downpours which hit, inter alia, the Stellenbosch area.
[3] On 19 November 2019, the insurance loss adjusters ("Proloss") hired
by the insurers of the Applicant, Bryte Insurance Company Limited ("Bryte"),
furnished Bryte with a preliminary report. This report indicated that a claim
of approximately R500 000.00 had been intimated by the Applicant following
the storm damage. The report also indicated that the Respondent should be
held responsible for the damages sustained by the Applicant in the incident of
25 October 2019.
[4] On 19 September 2020, the Applicant's attorneys drafted section
3(2)(a) of the Act notice to the Respondent wherein they made it very clear
that the notice is in respect of an incident that took place on 25 October 20 I 9.
This notice was out of time by nearly five months as it should have been
served on the Respondent no later than the 24th day of April 2020.
[5] On 18 October 2022, the Applicant issued Combined Summons which
was served on the Respondent on 19 October 2022. Defendant's Plea and
Special Plea which raised the issue of non-compliance with the provisions of
section 3(1 )(a) read with section 3(2)(a) of the Act was served on the
Applicant on 19 July 2024.
[ 6] The Applicant served its condonation application on Respondent's
correspondent attorneys on 18 March 2025, and the Respondent deposed to
an Answering Affidavit on 26 April 2025. It is, however, not clear from the
record when was same served and filed. What is known is that the Answering
Affidavit of the Respondent raised two points in limine and which are as
follows:
[6.1] That the deponent to the Founding Affidavit has no authority to
depose thereto.
[6.2] That the averments contained in the Founding Affidavit of the
Applicant and which sought to give an explanation with regard to the
late filing of the section 3(1)(a) read with section 3(2)(a) notice
constitutes inadmissible hearsay evidence.
The Replying Affidavit of the Applicant was served on the Respondent on 1
July 2025.
Issues for determination
[7] From this Court's reading of the papers filed, it is apparent that this
Court is called upon to make a determination on the following:
(7.1] Whether the Applicant has shown, in its application, that good
cause exists for its failure to serve on the Respondent a notice as
required by section 3(1) in accordance with section 3(2) of the Act.
[7.2] Whether the Applicant has shown, in its application, that the First
Respondent was not unreasonably prejudiced by the failure.
In other words, this Court is called upon to determine whether the Applicant
has successfully surmounted the legal hurdles placed by section 3( 4)(b )(ii)
and (iii) of the Act. In order to make such a determination, this Court is
required to lay bare and discuss the legal principles regulating condonation
applications made in terms of section 3(4)(b) of the Act.
Points in limine
[8] Before dealing with the condonation application, this Court deems it
prudent to first deal with the points in limine raised by the Respondent. The
first point in limine raised by the Respondent, as apparent from paragraph 5
of its Answering Affidavit, is that the deponent of the Applicant's Founding
Affidavit in the condonation application is not duly authorised to depose to
such affidavit. From the Court's reading of paragraph 5, the Respondent does
not take issue with Applicant's attorney's authority to act on behalf of the
Applicant herein, its only contention is Lindy Manamela's authority to depose
to the Founding Affidavit.
[9] Streicher JA held as follows in Ganes and Anoth er v Telecom
Nam ibia Ltd regarding deponent' s authority to depose to an affidavit:
"[19] ... In my view it is irrelevant whether Hanke had been authorised to depose to
the founding affidavit. The deponent to an affidavit in motion procee dings need not
be authorised by the party concerned to depose to the affidavit. It is the institution of
the proceedings and the prosecution thereof which must be authorised. In the presen t
case the proceedings were instituted and prosecut ed by a firm of attorneys
purporting to act on behalf of the responde nt. In an affidavit filed together with the
notice of motion a Mr Kurz stated that he was a director in the firm of attorneys acti ng
on behalf of the respondent and that such firm of attorne ys was duly appointed to
represent the respondent That statement has not been challenged by the appellants.
It m ust, therefore, be accepted that the institut ion of the proceedings were duly
author ised ."1 (See also Erasmus Superior Court Practice Second Edition at D1·54)
[10] The Court's understanding of the case cited above is that the
Applicant's attorney herein does not have to possess a separate authority to
depose to an affidavit, proof that she has been authorised to act on behalf of
1 Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA)
the Applicant is enough. Therefore, Respondent's first point in limine must
fail.
[11] The Second point in limine raised by the Respondent is that the
averments made in the Founding Affidavit, more specifically at paragraphs 8,
9 and 10 thereof, constitute inadmissible hearsay evidence. It is notable that
when Applicant's attorney attempted to deny the truthfulness of this averment,
she repeated that the information was "conveyed" to her as the legal
representative of the Applicant. There is, therefore, no dispute that she placed
reliance on hearsay evidence when making the averments contained at
paragraphs 8, 9 and 10 of her founding affidavit. What the Court now needs
to determine is whether this evidence is admissible or not.
[12] The general rule about hearsay evidence is that it is inadmissible, but
there are certain circumstances in which it may be admissible. In the
unreported judgment of the Gauteng Local Division, Thompson AJ held as
follows in Masazie Logistics (Pty) Ltd v Show Pao Fan with regards to the
admission of hearsay evidence in motion proceedings:
"[11] A proper motivation must be set out in an affidavit by the party relying on the
hearsay evidence, having regard to the requirements set out in Section 3(1) of the
General Law of Evidence Amendment Act 45 of 1988 (Hearsay Act), why the interests
of justice permit the admission of hearsay.
[12] Prior to the enactment of the Hearsay Act, it was incumbent on a party seeking
the admission of hearsay evidence to, inter alia, assert that the deponent believes the
hearsay to be correct and furnish the grounds for such belief. I can find nothing in
Section 3(1) of the Hearsay Act that this requirement has been abandoned. As a
matter of fact, Section 3(1)(c)(vii) of the Hearsay Act enjoins the court to have regard
to any other factor which, in the opinion of the court, should be taken into account. I
am of the view that a deponent who seeks to have hearsay evidence admitted must,
at least, in terms of this section state that the hearsay evidence is believed to be true
and set out the grounds upon which such belief is founded."
[13] Theron J also held as follows in Galp v Tansley, N.O. and Another:
"But one important point emerging from the cases which I have enumerated in the
preceding paragraph is this, viz., that our Courts have consistently refused to
countenance the admission as evidence -for any purpose whatever -of any statement
embodying hearsay material, save where such statement has properly been made the
subject of an affidavit (or solemn affirmation) of information and belief, i.e., save
where the deponent ( or affirmer) has not only revealed the source of the information
concerned but in add ition has sworn (or solemnly affirmed) that he believes such
information to be true and furnished the grounds for his belief."2
[ 14] What is clear from the authorities cited above is that the deponent who
seeks to rely on hearsay evidence in his or her affidavit has to lay a foundation
first, i.e. he or she needs to state that the hearsay evidence he or she seeks to
rely on is believed to be true, set out the grounds upon which such belief rests,
2 1966 (4) SA 555 (C)- 559H
set out the grounds upon which such hearsay evidence should be admitted and
thereafter request the court to admit same.
[15] In the application at hand, none of what is contained in the preceding
paragraph has been embarked upon, therefore, the second point in lirnine
should succeed. Having made this finding, this Court therefore orders that
paragraphs 8, 9 and 10 of the founding affidavit deposed to by Ms. Lindy
Manamela on 20 January 2025 be struck out.
Legal principles applicable to Condonation Applications made in terms
of the Act
[ 16] Section 3( 4) of the Act reads as follows:
"(a) If an organ of state relies on a creditor's failure to serve a notice in terms of
subsection (2)(a), the creditor may apply to a court having jurisdiction for
condonation of such failure.
(b) The court may grant an application referred to in paragraph (a) if it is satisfied
that-
(i) the debt has not been extinguished by prescription ;
(ii) good cause exists for the failure by the creditor; and
(iii) the organ of state was not unreasonably prejudiced by the failure."3
[17) In dissecting the meaning of 'good cause' Heber JA in Madinda v
Minister of Safety and Security\ a unanimous decision of the Supreme Court
of Appeal, cited the following passage by Schreiner JA in Silber v Ozen
Wholesalers (Pty) LtdS:
«The meaning of "good cause" in the present sub-rule, like that of the practically
synonymous expression "sufficient cause" which was considered by this Court in
Cairn's Executors v Gaan 1912 AD 181, should not lightly be made the subject of
further definition. For to do so may inconveniently interfere with the application of
the provision to cases not at present in contemplation. There are decisions in which
the same or similar expressions have been applied in the granting or refusal of
different kinds of procedural relief. It is enough for present purposes to say that 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."
"Although this passage relates to a different legislative context (viz rule 46(5) of the
magistrates' court rules), I am of the view that it holds good for the interpretation of
s 3(4)(b)(ii). "Good cause" usually comprehends the prospects of success on the
merits of the case, for obvious reasons : .. "6
[18) In elaboration, in Minister of Agriculture and Land Affairs v CJ Rance
(Pty) Ltd7, Majiedt AJ (as he then was) elaborated as follows:
"[11] As can be seen, s 3(4)(b) circumscribes a court's power by requiring that it be
satisfied that: (i) the debt has not been extinguished by prescript ion; (ii) good cause
3 Section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of2002
4 2008 (4) SA 312 (SCA) par [11)
s 1954 (2) SA 345 (A) at 352H-353A
6 Madinda v Minister of Safety and Security 2008 ( 4) SA 312 (A) at 3 I 6J - 317 A
7 2010 (4) SA 109 (SCA)
exists for the failure by the creditor, i.e. to serve the statutory notice according to s
3(2)(a) or to serve a notice th at complies with the prescripts of s 3(2)(b); and
(iii) the organ of State was not unreasonably prejudiced by the failure. These
requirements are conjunctive and must be established by the applicant for
condonation."
[19] In Rossouw v Blignaut and Wessels and Another 8 , a very recent
reportable judgment of the Supreme Court of Appeal, Makgoka JA, writing
for the majority, re-iterated the position regarding condonation applications in
terms of section 3(4) of the Act, as follows:
"[55] As to the element of good cause, it entails, among other things. the reasons for
the delay, the sufficiency of the explanation offered, the bona fides of the applicant,
any contribution by other persons or parties to the delay and the applicant's
respon sibility therefor, and prospects of success in the proposed action."
[20] On the issue of prospects of success, the applicant in a condonation
application is not expected at this stage to satisfy the Court on a balance of
probabilities that her action would succeed9. A prima facie case and a bona
fide intention in the sense of seeking an opportunity to have the matter tried
would suffice.10 At this stage, the Court of appeal should not seek to critique
applicant's evidence as if it were a trial court.11
[21] Furthermore, the majority judgm ent in Rossouw, said the following
when dealing with the issue of unreasonable prejudice:
"[71] The Full Court did not consider th is factor at all, since, seemingly, on its view,
the applicant had failed to explain the delay between 2017 and 2018. In my view,
the Full Court proceeded from the wrong premise in this regard and misdirected itself
8 [2025] ZASCA at par [55] - judgment was delivered on 7 October 2025
9 Rossouw, par [65]
10 Ibid, par [65)
11 Ibid, par [68]
as a result. The three jurisdictional factors in s 3(1)(a) should be considered in a
balanced approach. None of them should, a priori, be eliminated from the equation
simply because the other is weak. As pointed out in Madinda, prospects of success on
the merits could mitigate fault."12
[22] At paragraph [82] of Rossouw, Makgoka JA further emphasized that:
"[82] Furthermore, this Court pointed out in Madinda that although the onus to
the absence of unreasonable prejudice rests on the applicant, whether the grounds
of prejudice exist often lies peculiarly within the knowledge of the respondent. Thus,
'a court should be slow to assume prejudice for which the respondent itself does
not lay a basis. What this Court cautioned against is precisely what the high court
and the Full Court did. The MEC laid no basis for her assertion that the late delivery
of the statutory not ice would not cause the department any unreasonable prejudice.
Despite this, the two courts below assumed the presence of such prejudice in the
MEC's favour. They erred in this regard."
Principal submissions
[23] During argument, both Applicant's and Respondent's counsel were ad
idem that this application has not been adversely impacted upon by section
3(4)(b)(i) of the Act in that Applicant's claim herein has not been extinguished
by prescription.
[24] They were also ad idem with regards to the following:
(a) That the requirements of section 3(4)(b) are conjunctive.
12 Ibid par 71
(b) That the phrase "if [the court] is satisfied" sets the standard which
is not proof by balance of probabilities, but rather the overall
impression the facts make on a court that approaches the matter with
fairness.
( c) That in general terms, the interests of justice play an important role
in condonation applications.
(d) That the discretion afforded to the court under section 3(4)(b) is not
a narrow one.
[25] There is also a concursus animornm between the respective counsels
that in enquiring whether good cause exists, our courts have developed a
flexible approach and examined factors that affect the fairness of granting
relief to an applicant and the proper administration of justice. Such factors
include reasons for the delay, sufficiency of the explanation offered, prospects
of success in the proposed action, applicant's bona fides, and any contribution
by other persons or parties to the delay and applicant's responsibility therefor.
[26] It should be remembered that as a result of the striking out of paragraphs
8, 9 and 10 of the Applicant's Founding Affidavit, there is currently no
explanation for the delay in serving notice in terms of section 3(1)(a) read
with section 3(2) of the Act by the Applicant. However, the Applicant has
submitted that the degree of non-compliance with section 3(2)(a) is not
inordinate as it is a mere four months period or close to five months at most.
[27] The prospects of success are a highly contested terrain between the
parties.
(a) Applicant submits that the prospects of succeeding in the main
action are strong or at least reasonable. De Zalze's case is that the water
damage to the property occurred because of an existing storm water
channel put in place, alternatively erected by the Municipality, and that
the storm water was deliberately channeled to the property by the
Municipality. That prior to the incident, De Zalze corresponded with
the Municipality regarding the issues with the storm water channel, as
set out in annexure "A2" to De Zalze's particulars of claim. That the
Proloss report, included as annexure "A3" to De Zalze's particulars of
claim, indicates a prima facie case at least based on the Municipality's
failure to adequately maintain the stormwater channel, leading to
blockages and subsequent overflow directly onto De Zalze's property.
Although the Municipality denies De Zalze having strong
prospects and alleges that any damage was a result of De Zalze's own
negligence, this is unsustainable.
(b) Respondent disputes Applicant's claim based on negligence and
causation. Respondent goes further to submit that Applicant's claim is
based on hearsay driven allegations and is very thin on factual
foundation objectively speaking. Respondent also submits that there are
material disputes of fact which render any "strong prospects of success"
assertions speculative at best as the probabilities in disputed issues is
likely to favour the Respondent. Respondent goes on to submit that the
Applicant has not demonstrated "strong" prospects, at best, the merits
are uncertain and contested. While the law provides that strong merits
may mitigate procedural non-compliance, weak or uncertain merits
cannot do so. In this case where there is no explanation for the delay,
the absence of clearly strong prospects weighs heavily against a finding
of good cause in favour of the Applicant.
[28] In addition to the alleged hopeless case of the Applicant, the
Respondent also lamented the fact that the Applicant waited more than two
years before issuing summons on 18 October 2022 with no explanation as to
why summons were only issued on the eve of prescription. More importantly,
for the present application, the Municipality filed its plea, including the
special plea of non-compliance with section 3 on 19 July 2024. Yet, the
Applicant only launched the condonation application approximately eight
months later, with no explanation for this additional delay.
[29] The Municipality takes further issue with De Zalze issuing summons
more than two years after the notice was sent. The explanation for this is that
De Zalze continued attempting to engage further with the Municipality during
such time, addressing written correspondence as well as trying to contact the
Municipality's representatives telephonically throughout. The Municipality
failed to provide any response.
[30] As for the complaint about the delay in launching the condonation
application, the explanation is that after the Municipality's plea was served on
De Zalze on 1 August 2024 (seven months after the amended particulars of
claim were served in December 2023), MokgohloaAttorneys awaited specific
instructions from Bryte regarding De Zalze's next legal steps. Mokgohloa
Attorneys acts on a contingency fee basis in this matter, meaning it cannot
cover legal counsel fees and disbursements and such costs are covered directly
by Bryte. It was especially important therefore to await Bryte's instructions
before proceeding. Certain internal organisational changes at Bryte between
September and November 2024 also delayed the process, including new claim
handlers and management responsible for authorising legal instructions.
These required a period for transition which delayed Mokgohloa Attorneys
receiving instructions to proceed with launching this application. De Zalze's
legal representatives then prepared ~is application during November and
December 2024. Due to payment delays for the courier service, Mokohloa
Attorneys were only able to dispatch the documents from their offices in
Johannesburg to their correspondent attorneys in Cape Town towards the end
of February 2025 and have the application issued in March 2025. The delay
of seven months between August 2024 and March 2025 was not inordinate.
If one considers such delay as a factor, it would need to be done as part of the
Court's 'overall impression' approach, including the context that the
Municipality itself demonstrated laxness in delaying to file its plea by over
six months.
[31] Regarding unreasonable prejudice, the Applicant submitted that there
is no basis laid by the Respondent to conclude that it has been unreasonably
prejudiced by Applicant's failure to serve the notice timeously. Even if
condonation is granted, Applicant will still need to make out a case in the main
action and prove its claim, and the Respondent will not be prevented from
defending the matter.
[32] The Respondent responded to the above by submitting that it has
suffered inherent prejudice as it could not do early investigation and
preservation of evidence. A notice served roughly ten months after the
incident (and well after the expiry of the six-month period) undermines
purpose. The subsequent delays compound the prejudice as memories fade,
personnel change, records become harder to locate, and the infrastructure
itself may change over time. The submission made by the Respondent and
which is to the effect that it would have enjoyed the protection of its insurance
policy if the statutory notice had been delivered within the six-month period
shall be ignored by this Court as the answering affidavit deposed to by
Garaldene Lezette Mettller on 26 April 2025 contains no such averment. This
issue was only raised in the Respondent's Heads of Argument.
Discussion and findings
[33] The following are not in dispute in this matter:
( a) The Applicant failed to deliver to the Respondent a notice drafted
in accordance with the terms of section 3(2)(b) within a period of six
months from the date on which the debt became due hence this
condonation application.
(b) The Applicant's reasons for the delay are not on record as they had
been struck out as they were made up entirely of inadmissible hearsay
evidence.
( c) That the notice delivered by the Applicant on 19 September 2020
was nearly five months out of time based on the cause of action that
arose on 25 October 2019. The notice itself makes it clear that it is in
respect of an incident that took place on 25 October 2019.
[34] Having found that the degree of lateness of the notice is nearly five
months and that no explanation for the delay is on record, the Court has to
make a finding on whether the Applicant has any prospects of success in the
main action. As previously stated in this judgment, prospects of success in a
condonation application, the Applicant is not expected to persuade the Court,
on a balance of probabilities, that it will succeed wHh its main action. All that
it has to show the Court is that it has a prima facie case and that it has a bona
fide intention of having it tried. This Court is therefore satisfied that the
Applicant has surmounted this hurdle in that this Court does not believe that
the Applicant has a hopeless case. It might have a difficult case in its hands
but that does not translate to a hopeless case.
[35] Having made the above finding, then this Court has to make a
determination on whether the Respondent will suffer unreasonable prejudice
should condonation be granted. It must be said that the Respondent did not set
out any tangible prejudice that will be suffered by itself should condonation
be granted. It only stated in general terms that memories do fade, that
personnel do change, that records do become harder to locate and that the
infrastructure itself may change over time however, the Respondent did not
link the aforegoing factors to itself.
[36] The Respondent had raised serious concerns with the delay of two years
between the delivery of the notice as required by the Act and the issuing of
swnmons; and the delay between tbe service of the special plea and the
institution of these condonation proceedings. The Applicant gave a detailed
and corroborated explanation for the delay in the aforementioned respect, and
this Court has been satisfied by the explanation itself.
[37] Therefore, while being very much aware of the fact that there is no
explanation on record for the delay in delivering the notice, this Court is
however of the view that the five-month delay in having same delivered is not
inordinate. This Court has already found that the Applicant has prospects of
success with its main action and that there is no unreasonable prejudice likely
to be suffered by the Respondent should condonation be granted. This Court
is also satisfied that the Applicant has been able to give a detailed explanation
for the other delays complained of by the Respondent.
[38] Having considered all of the above factors in conjunction, this Court
therefore finds that Applicant's condonation application should succeed.
Order
[34] In the result, I would grant the following order:
[34.1] The condonation application is granted with no order as to costs.
APPEARANCES:
For the plaintiff:
Instructed by:
For the defendant:
Instructed by:
G. Loubser
Mokgohloa Attorneys Inc.
A. Montzinger
VKZ Inc.