Banda v Department of Police, Roads and Transport (2936/2023) [2024] ZAFSHC 255 (12 December 2024)

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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable / Not reportable

Case no: 2936/20234

 

In the matter between

MODISE SIMON BANDA PLAINTIFF/APPLICANT

and

DEPARTMENT OF POLICE, ROADS AND TRANSPORT DEFENDANT/RESPONDENT

 

Neutral citation:

Coram: MAHLATSI AJ

 

Heard: 28/11/2024

Delivered: 12/12/2024

 

Summary: Application for condonation – late filing of notice in terms of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. Application for condonation for the late filing of a notice in terms of section 3 of the institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 .

 

ORDER

1. Application for condonation for the late filling of notice in terms of section ss 3(2) (a) of the iInstitution of Legal Proceedings Against Certain Organs of the State Act , No. 40 of 2002 is dismissed

2. The aApplicant is ordered to pay the costs of this application.

 

JUDGMENT

 

INTRODCTION

Mahlatsi AJ

 

Introduction

 

[1] This is an application in terms in terms of which the Applicant applicant sought condonation for the late filing of a notice of intended legal proceedings as contemplated in section 3 (2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, No 40 of 2002 (the ‘Act No.40 of 2002’) and that the Respondent respondentto be ordered to pay the costs of this application in the event he/she/theyit unreasonably opposes this application.

 

[2] The aApplicant launched this application in response to the special plea raised by the rRespondent of non-compliance with section 3 of the Act 40 of 2002. In the main, the rRespondent contended that the aApplicant failed to serve the required notice within the prescribed period and that the aApplicant’s claim has prescribed.

 

[3] This court is required to determine whether the aApplicant has made out a case for condonation as contemplated in section 3(4)(a) and (b) of the Act 40 of 2002?.

 

Brief material background

 

[4] On or about 12 June 2021, the aApplicant was involved in a single vehicle collision when his vehicle hit a pothole on the on the R70 road in Ficksburg, Free State. He lost control of the vehicle and the vehicle overturned. He sustained bodily injuries and a brain head injury. He received medical treatment at Phuthulouha Hhospital and later transferred to Dihlabeng Regional Hhospital for further treatment.

 

[5] The aApplicant did not approach his attorney to institute a claim until April 2023, when he heard a talk discussion on a radio programme which indicated that persons who were involved in accidents as a result of poor road maintenance had a right to institute legal proceedings to recover their losses.

 

[6] After one year and ten months the applicant, through his attorneys of record, notified the respondent in terms of section 3(1) of Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the ‘the Act’) of his intention to institute action against the respondent for recovery of damages arising out of the alleged accident. Summons was, thereafter, issued on the 12 June 2023 and served on the 14 June 2023 to the Respondent, which is within 3three years after the alleged cause of action arose alleging that the respondent breached his legal duty towards the applicant by, inter alia, failing to ensure the repair of all potentially dangerous rutting and /or potholes on the road surface.

 

[7] The respondent resists the action and filed a special plea to the effect that the notice in question was defective in that it was not served timeously.

 

[8] On 15 July 2024 the applicant filed the instant application, moving for condonation of the late delivery of the relevant notice together with costs in the event the respondent unreasonably opposes the application. The respondent opposes the application on the grounds that there exists no good cause for condonation.

 

Applicable law

 

[9] Section 3 of the Act proscribes the institution of legal proceedings against organs of state such as the respondent without either a written notice given within six months from the date on which the cause of action arose or written consent to the institution of such legal proceedings without notice.

 

 

[10] Failure to give the prescribed notice may be condoned by the court on application if the relevant organ of state withholds consent and if the court is satisfied that:

(a) The relevant claim has not prescribed;

 

(b) good cause exists for the failure to comply; and

 

(c) the relevant organ of state was not unreasonably prejudiced by the failure. (See Section 3(4)(a) and (b)of the Act).¹

 

[11] In the context of the Act and for the purposes of condonation ‘‘the phrase “‘if [the court] is satisfied” in s 3(4)(b) has long been recognised as setting a standard which is not proof on a balance of probability. Rather it is the overall impression made on a court which brings a fair mind to the facts set up by parties.’² (See Mabinda v Minister of Safety and Security 2008 (4) SA 312 (SCA) at paragraph [8]. )

 

[12] For the purpose of condonation the court has a wide discretion and ‘… ‘. . . “‘good cause” ‘may include a number of factors that are entirely dependent on the facts of each case; [and] that the prospects of success of the intended claim play a significant role.’³ (See MEC for Education, Kwazulu Natal v Shange 2012 (5) SA 313 SCA at paragraph [15].

 

[13] It is incumbent upon the applicant for condonation to ‘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.’⁴ (See Premium, Western Cape v Lakay 2012 (2) SA 1 (SCA) at paragraph [17].

 

[14] Post- notification delay exacerbates the matter insofar as ‘[c]condonation must be applied for as soon as the party concerned realises that it is required. The onus, to satisfy the court that all the requirements under s 4(b) of the Act have been met, is on an applicant, although a court would be hesitant “to assume prejudice for which a respondent does not lay a basis.”’⁵ (See Minister of Agriculture and Land Affairs v C J Rance (Pty) Ltd 2010 (4) SA 109 (SCA) paragraph [39].)

 

[15] Prescribed time periods in litigation seek to obviate inordinate delays which compromise the interest of justice insofar as time is the worst enemy of human memory. The notice prescribed by section 3 of the Act, inter alia, ‘allows the organ of state time to investigate the complaint and [to] possibly agree to payment or settlement without incurring the costs of litigation.’⁶ (See Francis Ralentsoe Moloi v Minister of Safety and Security and Others, case number 3821/2013, unreported judgement of Free State High Court delivered on 12 June 2014 and Mohlomi v Minister of Defence 1997 (1) SA 124 (CC).)

 

[16] In Mofolo v Minister of Police⁷ (3994/2020) [2022] ZAFSHC 23 C (21 September 2022) at paragraph [19] the Court held: ‘… ‘. . . the argument that she did not know that she was wronged stands to be rejected because it is farfetched and untenable. It is a doctrine of law that ignorance of the law is not an excuse. I agree with counsel for the respondent that if this argument was to pass muster, then the flood gates for any person escaping accountability relying on it will be open.’

 

Issues in dispute

 

[17] The parties are at variance on whether or not good cause exists for condonation with specific reference to the following:

 

(a) Whether or not the reason advanced by the applicant for pre-notification delay is acceptable and satisfactory with the respondent holding that same is flimsy and the delay is inexcusable.

(b) Whether or not the respondent would suffer prejudice if condonation is granted with the applicant contending that the fact that the fact that the respondent deals with the merits of the action in its opposition of the application is indicative of his ability to deal with the matter without any prejudice in his defence.

 

Depositions and contentions for the applicant

 

[18] The applicant attributes the delay to the fact that after the accident he was not aware that he had a cause of action against the respondent and only acquired relevant knowledge when he heard a talk discussion on the radio that persons who were involved in accidents as result of poor road maintenance had a right to institute legal proceedings to recover their losses. After gaining knowledge that he had a claim, through a the radio and consulting with his attorney. T, the applicant immediately gave instructions to his attorney to proceed with the notice in terms of section 3 of the Act, dated 12 April 2023. Same was attached to the applicant’s replying affidavit and sent to the respondent via registered mail. However, it later came to light from the respondent’s plea, that the respondent did not receive the initial notice, and a second notice was only sent on the 117 October 2024.

 

[19] In argument on papers and before the court, Adv Van der Sandt submits that the applicant furnished proper reasons constituting good cause for condonation. She, further contends that the respondent has not been unreasonably prejudiced by the delay involved insofar as he has not shown any detrimental prejudice in his ability to properly investigate the applicant’s cause of action. In conclusion, she reiterates that the pre-notification delay in applying for condonation is not prejudicial to the respondent and is, as such, not necessarily fatal to the present application.

 

depositions Depositions and contentions for the respondent

 

[20] T The respondent’s Acting Legal Director Services deposes at length to, inter alia, the effect that the respondent has been severely prejudiced in his investigation of the alleged accident because of the repairs that took place on the relevant road between the date of the alleged accident and the date of the relevant notice. In his view, it is simply impossible to verify the alleged accident after the inordinate delay involved in bringing same to the respondent’s attention.

 

[21] On the papers and in argument before the court, Adv D De Kock contends, inter alia, the pre- notification delay of about two years before the application for condonation remains unsatisfactory and the attempted explanation is not full enough to enable this court to evaluate the applicant’s contribution to the delay and the applicant’s bona fides.

 

Discussion

 

[22] In law, the applicant was obliged to serve the relevant notice on the respondent not later than 6 six months, but same was only served almost two years after the alleged cause of action being the alleged accident. The delay involved was indeed inordinate and called for a sufficiently full explanation on the part of the applicant. This pre-notification delay has, in my view, simply cries out for explanation and reflects negatively on the applicant’s attitude towards the matter, regard being had to the fact that he is self-employed as plumber not necessarily well-versed in legal affairsand as such not totally illiterate though not in the legal field. Once again, the reason why he did nothing to secure the necessary assistance prior to April 2023 remains a mystery.

 

[ 23] The argument that the applicant did not know that he was wronged up and until he heard a talk discussion on the radio that the people who were involved in accidents where the roads were not properly maintained, have had a right to claim, stands to rejected because it is farfetched and untenable. It is a doctrine of law that ignorance of the law is not an excuse. I agree with counsel for the respondent that if this argument was to pass muster, then the flood gates for any person escaping accountability, relying on it will be opened.⁸ (See Mofolo supra)

 

[243] The applicant insists that the respondent has not shown any detrimental prejudice to his ability to properly investigate the cause of action. The onus is, however, on the applicant to show that all requirements set out in the Act for condonation condonation have been met. The respondent, as the organ of state concerned, is only saddled with the evidentiary burden to lay the basis for the court to infer the presence of unreasonable prejudice on his its part.⁹ (See Minster of Agriculture and Land Affairs v C j Rance (Pty) Ltd (supra)

 

 

[254] The court is satisfied from the opposing papers that the respondent has done more than lay the basis for the relevant inference to be drawn. He It has in effect demonstrated how he it would be forced to accept the applicant’s ipse dixit because of the delay involved, which effectively deprived him it of the opportunity to investigate the matter properly in order to, inter alia, test the veracity of the claim.

 

 

[2526] Having considered the authorities cited and, the facts of this application for condonation, I. I am not persuaded that good cause exists for condonation in the instant case.

 

 

 

Costs

 

[276] There exists no cause reason to deviate from the general rule in practice with regards to costs. Costs, therefore, follow the event in the instant matterresult.

 

ORDER Order

[287] . Accordingly, I make the following order:

1. Application for condonation for the late filling of notice in terms of ss 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of the State Act 40 of 2002 is dismissed

2. The applicant is ordered to pay the costs of this application.

1. Application for condonation for the late filling of notice in terms of section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of the State Act, No 40 of 2002 is dismissed.

2. The Applicant is ordered to pay the costs of this application.

 

 

 

 

__________________

MAHLATSI AJ

 

Appearances

 

For the Applicant: Adv. N Van Der Sandt

Instructed by: Nemakanga Attorneys

c/o Webbers Attorneys

BLOEMFONTEIN

 

For the Respondents: Adv. D. DE KOCK

Instructed by: Office of The State Attorney

BLOEMFONTEIN