D.H v City of Cape Town and Another (13157/2019) [2020] ZAWCHC 146 (3 November 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case Number: 13157 / 2019

In the matter between:

D H

Plaintiff

(Identity Number: […])

and

THE CITY OF CAPE TOWN

First Defendant

MARTIN & EAST (PTY) LTD

Second Defendant

(Registration Number: 1950/037428/07)

Coram: Wille, J

Heard: 27th of October 2020

Delivered: 3rd of November 2020

JUDGMENT

WILLE, J:

[1] This is an application for condonation at the instance of the plaintiff. For the purposes of convenience and clarity, the parties will be referred to as they were

cited in the main action proceedings. The plaintiff suffered injuries due to an accident while riding his bicycle. The first defendant is the City of Cape Town[1] and the second defendant is the contractor[2], who was busy with certain roadworks on behalf of the City. The plaintiff seeks condonation because of the late delivery of his notice[3], as required in terms of section 3(1)(a) and section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act[4]. The plaintiff’s application for condonation is in terms of section 3(4)(a),(b) and (c) of the Act. The second defendant takes no part in these proceedings.

[2] The plaintiff’s case is that on the 16th of September 2018, he was involved in an accident at the intersection of Kommetjie Road and Somerset Way, while riding his bicycle. The defendants were busy with road works at this intersection when the accident took place. It is alleged that at all material times thereto, the defendants were negligent by failing to uphold their duty of care whilst performing the said road works at the abovementioned intersection.

[3] It is alleged that as a direct result of this accident, the plaintiff was injured and suffered damages and the defendants are accordingly liable to compensate the plaintiff for the damages that he had suffered. The first defendant admits that it was conducting re-surfacing of the roadway at the intersection, but pleads no knowledge of the accident and denies that it was in any way negligent or that it breached its duty of care towards the plaintiff.

[4] The required notice was served on the first defendant by the plaintiff’s attorneys on the 4th of April 2019. This notice was served (19) days after the statutory (6) month period provided for in terms of the Act.

Thereafter[5], the plaintiff instituted action against the defendants and in his particulars of claim, he mentions that condonation is required for the late delivery of the notice. Significantly, no prayer is sought in this connection.

[5] The first defendant filed its special plea and its plea on the merits to the plaintiff’s claim on the 28th of October 2019. The first defendant’s special plea takes issue with the plaintiff’s failure to serve the required notice timeously. This, in turn triggered the present application for condonation by the plaintiff, which application was launched on the 29th January 2020.

[6] The core issue in this matter is whether the plaintiff has shown - good cause - for his failure to deliver his notice timeously. The plaintiff avers that he was hospitalised immediately after the accident and that he was treated in hospital for a period of (1) week. Thereafter, it was anticipated that he would endure a recovery period of about (6) weeks.

[7] Initially, the plaintiff was of the view that he had only suffered minor injuries as a result of the accident. However during December 2018, he suffered a further setback when he started experiencing excruciating pain in his back. This pain

persisted, despite treatment. In January of the following year, the plaintiff was assessed by an orthopaedic surgeon.[6] He obtained a report[7], regarding his injuries and this report was dispatched to the plaintiff’s attorneys on the 22nd of February 2019.

[8] Further, it is the plaintiff’s case that he received treatment from a bio-kineticist for a period of about (3) months thereafter and, it was only whilst he was undergoing this treatment that he was in a position to quantify the damages that he had suffered as a result of the accident. It was during this time that the plaintiff provided his attorneys of record with all the relevant information pertaining to his injuries. He positively avers that he left the legal process in connection with his claim in the hands of his attorneys. This is the plaintiff’s explanation and he is of the view that he took all the necessary steps to place his attorneys in a position to pursue his claim expeditiously, against the defendants.

[9] The explanation given by the plaintiff’s attorneys for the delay in the filing of the notice is, inter alia, the following;

that a candidate attorney, under the supervision of her principal, was entrusted with the task of drafting the notice; that due to an administrative error the office file was not diarised correctly; that the attorney only gained knowledge that the notice had not been delivered once the dies for delivering such notice had expired; that upon such discovery, the attorney immediately obtained the necessary outstanding documents and information from the plaintiff and that the attorneys thereafter delivered the notice. The point is taken by the plaintiff’s counsel, that the plaintiff was not in any manner to blame for the late delivery of the notice. The

submission is made that he should not be punished for this administrative oversight on the part of his attorneys.

[10] It is significant to record that the first defendant admits that it was performing the road works at the subject intersection, but simply denies any negligence. On this basis alone, the plaintiff asserts that he has good prospects of success in his claim. On the material before me it is apparent that the plaintiff suffered not insignificant injuries, as a direct result of the accident. The plaintiff accordingly argues that it has made out a strong prima facie case against the first defendant. On this, I agree.

[11] It is common cause that the notice was filed (19) days late. It was submitted by the plaintiff’s counsel that the plaintiff has exhibited that he possessed every intention of pursuing his claim against the defendants. On this basis, it is further submitted that the plaintiff has shown that he has been bona fide in the launching of his application for condonation. On this aspect, I also agree.

[12] When assessing and dealing with the issue of - good cause - the approach is by its very nature case-specific. I take the following from Shange[8] in this connection, in which it was held, inter alia, as follows;

‘…that “good cause” may include a number of factors that is entirely dependent on the facts of each case….’

[13] The discretion which I must exercise, is also by its very nature a wide discretion. In exercising this discretion, I also must of necessity consider the factor of whether or not any third parties contributed to the delay in the filing of the appropriate notice. As a matter of logic, a court will be more inclined to grant condonation where the party seeking such condonation, is not personally at fault.

[14] The first defendant concedes that it has not suffered any substantial prejudice by the late delivery of the notice. Put in another way, the first defendant adopts the view that it would not have been in a better position to defend the plaintiff’s claim, if the notice had been delivered (19) days earlier. In contrast to this, it is self-evident that the plaintiff will be severely prejudiced if condonation is not granted.

[15] The first defendant makes an issue in connection with the delay in the launching of the application for condonation. The first defendant submits; that the plaintiff became aware of the fact that he would be required to apply for condonation on the 4th of April 2019[9]; that despite this knowledge, the application was only launched on the 29th of January 2020 and no reasonable explanation is advanced for this inordinate delay. In this connection, the first defendant’s

counsel referred me to the findings in Van Der Merwe[10], it which it was held, inter alia, as follows;

‘However, the period of delay before the notices were delivered, is not the only aspect that has to be considered, because the delay of 6 months in filing the condonation application is of equal importance. If, for instance, it is found that there is no reasonable and acceptable explanation for the delay in filing the application, then it would follow that the application for condonation as a whole cannot succeed’

[16] The findings in Van Der Merwe were of necessity determined to a large extent by the facts specific to that case. It is significant that the merits of the action in Van Der Merwe did not tip the scales in his favour as the prospects of success in his case were held not to be good. The case before me is entirely different on this score. Further, the position taken by the first defendant on this issue is not legally sustainable. The first defendant only filed its special plea on the 28th of October 2019. I am of the view, that the provisions of section 3(1)(b) of the Act, find application. In my view, the delay in the filing of the application for condonation was therefore only about (3) months.

[17] Finally, the first defendant submits that the plaintiff failed to make out a case for the relief contended for in its founding papers. It is undoubtedly so that the founding papers are, at best, not impressive. Upon a reading of the founding papers it is however evident (although imprecise), that the plaintiff sought to rely on the nature and duration of his injuries, as the main ground for failing to file the notice timeously. In his replying papers, the plaintiff squarely blames his attorneys as a ground for the delays occasioned in this connection. It seems to me that nothing really turns on this, as it is clear that the delays were occasioned by a combination of both these grounds. I say this because, despite the administrative error contended for, all the information and documentation in connection with the plaintiff’s injuries was only provided to the plaintiff’s attorneys, some (5) weeks before the notice had to be delivered in terms of the Act.

[18] I do not form an overall impression, based on all the facts and circumstances of this case (despite the delays in this case), that I should not exercise my discretion in favour of the plaintiff. I am persuaded that good cause exists for the granting of condonation. I say this also because, if I were to refuse condonation, the applicant will effectively be denied his constitutional rights of access to courts as a result of a procedural irregularity, essentially at the hands of his attorneys, which is relatively minor and where there is no prejudice to the first defendant.

[19] A party’s right of access to courts, as constitutionally enshrined, must be taken into consideration when determining whether condonation should be granted. In this regard, I take the following from the findings in Premier Attraction[11];

‘…were I to deny condonation, this would ensure that applicant could not vindicate any rights which it enjoys under section 34 of the Constitution of the Republic of South Africa, 1996 ("the Constitution"), the spirit, purport and objects of which should figure in any such application…’

[20] The plaintiff’s action against the defendants has not been extinguished by prescription, good cause exists for the failure by the plaintiff and it is conceded that the first defendant was not unreasonably prejudiced by the delivery of the notice, some (19) days late. Accordingly, in my view, the plaintiff has met the requirements for condonation as set out in section (3)(4)(b) of the Act.

[21] Turning now to the issue of costs. The plaintiff is seeking an indulgence. The plaintiff’s founding papers were insufficient. The first defendant was not unreasonable in opposing the relief, particularly taking into account the content of the founding affidavit. Taking these factors into account, I am of the view that the plaintiff should be liable for the costs of an incidental to the application for condonation.

[22] In the result, the following order is granted;

1. That condonation is hereby granted to the plaintiff in terms of section 3(4)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

2. That leave is hereby granted to the plaintiff in terms of section 3(4)(c) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, to pursue his claim against the first defendant.

3. That the plaintiff shall be liable for the first defendant’s costs of and incidental to the opposition to the application for condonation, on

the scale as between party and party, as taxed or agreed.

_________________

E D WILLE

Judge of the High Court

[1] The ‘City’

[2] Martin & East (Pty) Ltd

[3] The ‘notice’

[4] Act 40 of 2002 (The ‘Act’)

[5] During July 2019

[6] Dr Leith Stewart

[7] A ‘Medico-Legal’ report

[8] The MEC for Education, KZN v Shange [2012] ZASCA 98 at para [15]

[9] The date of the letter of demand by the plaintiff

[10] Van der Merwe v Minister of Police and Another (2530/2018) [2019] ZAFSHC 118 (11 July 2019) at para [8]

[11] Premier Attraction 300 CC trading as Premier Security v City of Cape Town [2016] JOL 35769 (WCC) at para [31]