M.J.P.R v Wessels and Another - Appeal (A79/2021) [2023] ZAFSHC 428 (2 November 2023)

FLYNOTES: CIVIL PROCEDURE – Organs of state – Notice – Husband killed in motor accident – Two young children supported – Attorneys lodging incompetent claim against Road Accident Fund – New attorneys claiming from MEC on basis of responsibility for road maintenance – No explanation for delay of a year from when appellant terminated mandate of erstwhile attorneys – No explanation for four months delay in filing condonation application – Not even best interests of children could overcome complete absence of any explanation – Appeal dismissed – Attorneys Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, s 3(2)(a).

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

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Case number: A79/2021

In the matter between:

M[…] J[…] P[…] R[…]

Appellant

and

BLIGNAUT

WESSELS

1st Respondent

MEC POLICE, ROADS AND TRANSPORT FOR THE

FREE

STATE

PROVINCE

2nd Respondent

CORAM:

MHLAMBI, J et LOUBSER, J et CHESIWE, J

HEARD ON:

6 OCTOBER 2023

JUDGMENT BY: LOUBSER, J

DELIVERED ON: 2 NOVEMBER 2023

[1] This is an appeal against the dismissal by a single Judge of this Division of an application for condonation for the late filing of a notice of the Appellant’s intention to institute legal proceedings against the Second Respondent within a period of six months from the date on which the debt became due.[1] The appeal came before this Court on special leave granted by the Supreme Court of Appeal.

[2] It appears from the record of proceedings in the Court a quo that the Appellant is acting against the Second Respondent in her representative capacity as mother and natural guardian of two minor children who were aged 7 months and 4 years respectively on the date when the debt became due. It further appears to be common cause that the debt became due on 29 May 2011 and that the six months notice contemplated in Section 3(1)(a) of the Act was only served on the Second Respondent on 13 December 2018, approximately 7 years late. It is common cause between the parties that the Second Respondent is an organ of state as contemplated in the Act.

[3] In the summons, which was served on the Second Respondent on 7 May 2019, the Appellant stated that on 29 May 2011, when it was already dark, her husband was killed in a motor vehicle accident on the road between Reitz and Tweeling when he overtook another vehicle and when his vehicle then overturned in the process. The deceased was the natural father of the two minor children, and in that capacity he was responsible for their upbringing and maintenance. He also supported

the Appellant at the time of his death, it is alleged in the summons.

[4] The Appellant founded her claim against the Second Respondent on the premise that he is responsible for the upkeep and maintenance of the road in question, but that he failed to do so, since the road was full of potholes and uneven surfaces without any signs warning motorists that it was unsafe and dangerous to drive on the road and to overtake other vehicles, especially at night. The Appellant’s claim against the First Respondent, a firm of attorneys, is based upon their alleged negligence in allowing the Appellant’s claim to become prescribed.

[5] It is alleged in the summons that the Appellant instructed the First Respondent soon after the accident to recover damages from any party liable in law following the death of her husband. The First Respondent then pursued a claim against the Road Accident Fund, which claim later appeared to the First Respondent to have been incompetent. By that time, which was during the second half of 2017, the claim of the Appellant in her personal capacity had already become prescribed. The claim on behalf of the minor children had not become prescribed in terms of the provisions of Section 13(1)(a) of the Prescription Act.[2] As a result of these developments, the Appellant then acquired new attorneys and summons was issued against the First and Second Respondents. In his Plea, the Second Respondent raised a special plea of non-compliance with the provisions of Section 3(2)(a) of the Act in that the Appellant’s notice of her intention to institute proceedings on behalf of the children was not served within the period of six months from the date on which the debt became due. It is this special plea that caused the Appellant to approach the Court a quo for condonation of the late filing of the notice.

[6] In terms of Section 3(4)(b) of the Act a court may condone the late filing of the notice if it is satisfied that the debt has not become prescribed, that good cause exists for the failure to serve the notice timeously and that the defendant was not unreasonably prejudiced by the failure. Since the claim on behalf of the minor children had not become prescribed, the Court a quo was only called upon to consider the aspects of good cause and prejudice in the application. Having done so, the Court a quo found against the Appellant.

[7] When it comes to the question whether the Appellant has shown good cause for the late filing of the notice in the Court a quo, it speaks for itself that the founding affidavit filed by the Appellant in the application for condonation should be studied scrupulously to arrive at a just conclusion. In this affidavit the Appellant had the following to say: At the time of the accident she was a young housewife with no knowledge at all of legal proceedings. Therefore she completely relied on the First Respondent, whom she instructed to deal with the case about three weeks after the accident. She took the attorney to the scene of the accident, where he took many photographs. On that day workmen of the Second Respondent were busy repairing the potholes on the road.

[8] Her attorney explained to her that she had a Road Accident Fund claim and what he was going to do about it. In the days and weeks that followed, she kept on enquiring about the progress of the claims, but she was always informed that the attorney were waiting for documents. Eventually she went to fetch a copy of the police docket to expedite

matters and she delivered it to the First Respondent. All the time she was kept in the dark and she was not informed of who was to be blamed and be sued for the accident, and when. Sometime during 2017, on a date she cannot recall, she was informed by the First Respondent that her own claim had become prescribed, but that her children still had a claim.

[9] It was then that she instructed her present attorneys, who informed her that there was no claim against the Road Accident Fund as the accident was not caused by the negligence of the driver of another vehicle. She provided her new attorneys with all the documents and photographs in her possession. The attorneys then advised her that the claim would be against the authority responsible for the maintenance of the road, as they had negligently failed to perform their duty of care. Her attorneys subsequently served the notice of intention to institute legal proceedings on the Second Respondent.

Her erstwhile attorneys, the First Respondent, never advised her that such a letter had to be served within six months of the date of the accident.

[10] As for the element of possible prejudice to the Second Respondent if condonation is granted, the Appellant contended in her founding affidavit that there could not be any prejudice. She based this contention on the following: The Second Respondent is supposed to keep records of the inspection and maintenance of the roads within its jurisdictional area. Consequently, there should be a record showing that the Second Respondent’s servants repaired the potholes shortly after the accident and at the place where it happened. Furthermore, the records of the SAPS and the full record of the inquest held after the accident, are available to the Second Respondent.

[11] Here it needs mentioning that the Appellant annexed the said records to her founding affidavit. At the inquest it was found that the death was caused by a head injury and that the death was not brought about by any act or omission amounting to an offence on the part of any person. The SAPS records show that there were potholes on the road, but no road signs. According to an affidavit provided by an eye-witness, the deceased overtook three motor vehicles travelling in the same direction. In the process he lost control of his vehicle, and the vehicle overturned on the right hand side of the road and crashed into a telephone pole.

[12] The SAPS records also include photographs and a sketch plan of the scene of the accident, prepared by a warrant officer of the local Criminal Record Centre. The sketch plan shows a number of potholes on the right hand side of the road where the vehicle of the deceased left the road. The Appellant’s own photographs taken soon after the accident are annexed to a report by an engineer who later investigated the cause of the accident. On these photographs the potholes and the uneven surface of the road on the right hand side thereof are clearly visible. No warning signs are visible on the photographs. The engineer opined in his report that the accident was caused by the potholes, by the absence of warning signs and by the failure of the road authority to maintain the road properly.

[13] Now the Supreme Court of Appeal has stated in Madinda v Minister of Safety and Security[3] that good cause usually refers to the prospects on the merits of a case, as well as the reasons for the delay, the bona fides of the applicant and the contribution by other persons or parties to the delay and the applicant’s responsibility therefore. It is clear that the Appellant has dealt with each and every one of these elements of good cause in her founding affidavit.

[14] In her judgement, the learned Judge in the Court a quo found that the Appellant was clearly well versed about legal proceedings, because she already formed the opinion soon after the accident that the bad state of the road was the cause of the accident. She also instructed the First Respondent to pursue a claim and she made enquiries about the progress of that claim. The Appellant has therefore not shown good cause for the delay in giving the notice, she found. In addition, the learned Judge found that the Appellant has no prospects of success in the main action against the Second Respondent, because there is not sufficient evidence to show that the accident was caused by the bad state of the road. Furthermore, the learned Judge found that the Appellant has not set out the grounds upon which it can be said that the Second Respondent is not unreasonably prejudiced by the failure to serve the notice timeously.

[15] Having regard to what the Appellant has set out in her founding affidavit, I am of the view that the above findings, or at least one or two of them, could be labelled debatable or contentious. However, the findings of the learned Judge did not end there. She also found that no explanation was given for the delay for about a year from the time the Appellant terminated the mandate of her erstwhile attorneys to December 2018 when her current attorneys transmitted the notice to the Second Respondent. This aspect caused the learned Judge to conclude that the explanation for the delay was insufficient and unreasonable, and that the Appellant has consequently not shown good cause for condonation.

[16] It is quite correct that no explanation whatsoever was given for this delay for about a year. In her founding affidavit the Appellant merely mentioned that sometime during 2017, on a date she cannot recall, she was informed by the First Respondent that her claim had become prescribed, but that the children still had a claim. At that stage, she said, she felt terribly let down and went to see her present attorney of record. Acting on her instructions, her present attorney caused the notice to be delivered on the Second Respondent on or about 13 December 2018. In her Particulars of Claim, the Appellant alleged that she was informed of the prescription of her claim by the First Respondent during the second part of 2017. Be it as it may, it is clear from the Appellant’s own version that a whole year has lapsed before the notice was served.

[17] However, the period of delay before the notice was delivered, is not the only aspect that causes concern, because the 4 months delay in filing the condonation application is of equal importance. The Second Respondent’s Plea relating to the failure to serve a notice timeously was filed on 19 September 2019. The application for condonation was only filed on 30 January 2020. Again, there is no explanation whatsoever on the papers for this delay.

[18] Our law in this respect is clear. If it is found that there is no reasonable and acceptable explanation for a delay in filing the application, then it would follow that the application for condonation as a whole cannot succeed.[4] In Minister of Agriculture and Land Affairs v C J Rance (Pty) Ltd [5] the Supreme Court of Appeal held that condonation must be applied for as soon as the party concerned realises that it is required.[6] In Van Wyk v Unitas Hospital[7] the Constitutional Court confirmed the requirement that an applicant must give a full explanation for the delay. “In addition, the explanation must cover the entire period of delay” [8], the court stated.

[19] The four months delay in filing the application for condonation is, in my view, an unreasonable period of time which certainly called for an explanation. As already indicated, there was no explanation at all.

[20] The result is that, in the absence of any explanation for the pre-notification and post-notification delays, it cannot be said that the Appellant has furnished a sufficient explanation for the entire period of delay. For this reason alone, the application for condonation had to fail in the Court a quo, as it did.

[21] I am also satisfied that the learned Judge in the Court a quo was alive to the fact that the interests of the minor children were at stake in the proceedings before her. She referred to Section 28(2) of the Constitution to the effect that the best interests of the children are of paramount importance in every matter concerning

children, but she nevertheless was not satisfied that a proper case has been made out for an order condoning the late filing of the notice. I agree with this finding insofar as the complete absence of any explanation for the long delay after the Appellant’s

current attorneys came on board, is concerned. In my view, not even the best interests of the children can overcome this fundamental flaw in the Appellant’s explanation for the entire period of delay. The appeal therefore cannot succeed.

[22] As for the costs, counsel for the Second Respondent has requested an order of costs for two counsel. I am not satisfied that such an order would be justified. The facts of the matter were not complicated, while the legal principles concerned were mostly trite law.

In the premises the following order is made:

1. The appeal is dismissed with costs, which costs are not to include the costs of two counsel.

P. J. LOUBSER, J

I concur:

J.J. MHLAMBI, J

S. CHESIWE, J

For the Appellant: Adv. G. S. J. van Rensburg

Instructed by:

Leon J.J. van Rensburg Attorneys, Edenvale

c/o Rosendorff Reitz Barry, Bloemfontein

For the Second Respondents: Mr. B. S. Mene SC

Instructed by:

State Attorneys,

Bloemfontein

/roosthuizen

[1] Section 3(2)(a) of the Institution of Legal Proceedings against certain Organs of State Act no 40 of 2002 (the “Act”)

[2] Act 68 of 1969

[3] 2008(4) SA 312 (SCA) at par 10

[4]See e.g. OC Potgieter v MEC for Police, Roads and Transport, unreported judgement of this Division, case no. 3859/2015, par 17

[5] 2010 (4) SA 109 (SCA)

[6] Par 39 of the judgement

[7] 2008 (2) SA 472 (CC)

[8] At par 22 of the judgement