Ndlovu v Member of the Executive Council for Police, Roads and Transport: Free State Province and Another (4513/2019) [2020] ZAFSHC 41 (5 March 2020)

THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

Case No.: 4513/2019

In the matter between:

MATUTUZELA JOHANNES NDLOVU

Applicant

and

MEMBER OF THE EXECUTIVE COUNCIL Respondent

FOR POLICE, ROADS AND TRANSPORT:

FREE STATE PROVINCE

In re Case No.: 3682/2017

MATUTUZELA JOHANNES NDLOVU Plaintiff

MEMBER OF THE EXECUTIVE COUNCIL

1st Defendant

BARNES KONSTRUKSIE CC

2nd Defendant

MATJABENG MUNICIPALITY

Third Party

Coram: Opperman, J

Heard: 14 December 2019

Delivered: 5 March 2020

Summary: Application for condonation in terms of section 3(4)(b) of the Institution of Legal Proceedings against Certain Organs of the State Act 40 of 2002

JUDGMENT

I INTRODUCTION

[1] The major question in the case is why did the issue of condonation in terms of section 3(4)(b) of the Institution of Legal Proceedings against Certain Organs of the State Act 40 of 2002 only serve before court six years and four months after the date of the incident that caused the action?

[2] Justice is bigger than just the parties involved. The wisdom of the following quote[1] shows the reality of the situation:

“The law’s delay in many lands and throughout history has been the theme of tragedy and comedy. Hamlet summarised the seven burdens of man and put the law’s delay fifth on his list. If the meter of his verse had permitted, he would perhaps have put it first. Dickens memorialised it in Bleak House, Chekhov, the Russian and Moliere, the Frenchman, have written tragedies on it. Gilbert Sullivan has satirized it in a song. Thus, it is no new problem for the profession, although we doubt that it has ever assumed the proportions, which now confront us. “Justice delayed is justice denied,” and regardless of the antiquity of the problem and the difficulties it presents, the courts and the bar must do everything to solve it.” Judge Ulysses Schwartz of the Illinois Appellate Court (Gray v Gray (1955) (6) III. App. 2d, 571,128 N.E.2d 602)”

[3] On 6 August 2014 between 05h45 and 6h00 the applicant, whilst driving on the R34 between Riebeeckstad and Tshepong Mine in Welkom (“on the R34 road K7, Kutlwanong, Odendaalsrus”) lost control over the vehicle when he allegedly swerved to avoid driving through a trench on the road surface. The contractor that did the construction on the road; the second defendant in the main case, denied that there was a trench in the road at the time of the accident.

[4] The applicant claims payment of R 2 057 474.08 and costs in the main case.

II THE DELAY AND THE LAW

[5] Absurdly and only on 23 January 2019 between 08h40 and 9h00, during the pre-trial conference in terms of Rule 37, it was “discovered”

by all the parties that the issue of condonation in terms of section 3(4) of the Act had not been attended to: Five years and six months after the incident that caused the action. The minutes reads as follows:

“19. REQUEST THAT THE FIRST DEFENDANT CONDONES THE PLAINTIFF’S NON-COMPLIANCE WITH THE PROVSIONS OF SECTION 3(1) & 3(2) OF ACT 40 OF 2002:

19.1 The plaintiff requests that the first defendant grants him condonation for his non-compliance with the provisions of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.

19.2 The first defendant will consider the request and agrees to revert to the plaintiff in writing before 22 February 2019 regarding whether the first defendant grants condonation or refuses to grant condonation.

19.3 If the first defendant refuses to grant condonation the plaintiff will make an application to court for condonation.”

[6] At last and on 8 March 2019 the respondent informed the applicant that they do not consent to condonation. The notice of set down for 12 December 2019; this application, was filed on 28 November 2019.

[7] Apart from the above a detailed sequence of events that caused the application will depict the unfortunate state of affairs. I will,

however, first turn to the law. It will set the atmosphere and background in which the facts must be read. The law[2] is not new and as Heher JA wisely said in Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA): “… the present case resolves itself without difficulty according to its own facts.” It is the same here.

[8] The preamble of the Institution of Legal Proceedings against Certain Organs of the State Act 40 of 2002 (The Act) reads among others that:

“South Africa has moved from a parliamentary sovereign state to a democratic constitutional sovereign state;

The Bill of Rights is the cornerstone of democracy in South Africa and that the State must respect, protect, promote and fulfil the rights in the Bill of Rights;

Section 34 of the Constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum;

The right of access to courts may be limited to the extent that the limitation is reasonable and justifiable in an open and democratic

society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution;”[3] (Accentuation added)

[9] Section 3 of the Act must be read as a whole.

“Notice of intended legal proceedings to be given to organ of state.

(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless—

(a) the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question; or

(b) the organ of state in question has consented in writing to the institution of that legal proceedings—

(i) without such notice; or

(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection (2).

(2) A notice must—

(a) within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4 (1); and

(b) briefly set out—

(i) the facts giving rise to the debt; and

(ii) such particulars of such debt as are within the knowledge of the creditor.

(3) For purposes of subsection (2) (a)—

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and

(b) a debt referred to in section 2 (2) (a), must be regarded as having become due on the fixed date.

(4) (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.

(c) If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal proceedings in question, on such conditions regarding notice to the organ of state as the court may deem appropriate.”

[10] The law is that each case must be adjudicated on its inimitable factual matrix.

[11] The Madinda-case summarised the law:[4]

(1) The determination of 'good cause' entails a consideration of all of those factors which had a bearing on the fairness of granting condonation and affecting the proper administration of justice.

(2) Relevant factors might include (i) the prospects of success in the proposed action, (ii) the reasons for the delay, (iii) the sufficiency of the explanation offered, (iv) the bona fides of the applicant, and (v) any contribution by other persons or parties to the delay and the applicant's responsibility therefor.

(3) The applicant's prospects of success are a factor which ought to be taken into account in 'good cause'.

(4) The applicant’s post-notification delays are not a factor which ought to be taken into account in determining 'good cause' as it related not to 'good cause' but to condonation. In this instance it translates into whether there is an explanation for the delay that carries such veracity that the onus to succeed for condonation has been met; not whether there was a trench over the road at the time of the accident or not, or whether it caused the accident. This brings me to prejudice toward the respondent.

(5) The approach to the existence of unreasonable prejudice requires a common sense analysis of the facts, bearing in mind that whether the grounds of prejudice existed often lay peculiarly within the knowledge of the respondent. Although the onus was on an applicant to bring the application within the terms of the statute, a court should be slow to assume prejudice for which the respondent itself did not lay a basis.

III THE FACTS

[12] It is a common cause fact that the debt has not been extinguished by prescription.

[13] I pause to point out that the parties are not illiterate nor indigent. The applicant is a mechanical engineer employed at the Tshepong Mine, Welkom, Free State. He is 56 years old. The respondent is the Member of the Executive Council for Police, Roads and Transport: Free State. The applicant also issued summons against Barnies Konstruksie CC in the main case: 3682/2017. Matjabeng Local Municipality was joined as Third Party.

[14] The sequence of events

· 6 August 2014: (Wednesday) The incident occurred and the applicant was admitted to hospital.

· 8 August 2014: (Friday) The applicant was discharged from hospital.

· October 2014: The applicant consulted a neurosurgeon after referral by his general practitioner. Surgery was recommended.

· November 2014: The surgery was completed

· 17 January 2015: The applicant returned to work to discover that he is, physically, not able to perform his duties.

· After five months the applicant could still not ascertain the reason for his medical situation. He started to suspect the accident to be the cause. The doctors at the hospital did not realise that there was a spinal injury nor did the first neurosurgeon. He was also recuperating after major surgery and litigation did not cross his mind.

· 6 February 2015: The six months period lapsed for notification in terms of the Act.

· 9 June 2015: The applicant instructed attorneys. The applicant was only now informed of the Act and the six months period and was not aware of who was responsible for the maintenance of the road in issue.

· 11 June 2015: A written notice was issued to the respondent. Respondent received notice of the pertinent facts underlying the intended claim and days after the terms for notification was discovered by the applicant.

[15] Four months and five days is not an unreasonable delay in light of the above events. There were not any mala fides. The explanation is adequate.

[16] On 19 July 2017 summons was served in the main case.

[17] On 3 November 2017 a special plea was served by the respondent wherein they relied on the applicant’s failure to give notice in terms of section 3 of the Act. The respondent had all the facts and allegations available in June 2015 already. Pages 2 to 10 of the 3 November 2017-plea set out a detailed “Plea Over” that indicate that the respondent was equipped for trial. They are not prejudiced in the preparation of their case.

[18] In the meanwhile Barnies Konstruksie CC, the second defendant in the main case, admitted that they did work on the R34 during the period October 2013 to 2014; they admitted a general duty of care towards members of the public using the road; they admitted that they carried out work involving the road surface and admitted doing work on the R34 on 6 August 2014 with the proviso that they closed the road on the specific day at 07h00. The trench was only dug then and they took all precautionary measures.

[19] The period of time that passed from here on cannot be attributed to the applicant. He had to change legal representatives due to the delay, addresses were muddled and correspondence misplaced. The apparent confusion is a case for inquiry by the Legal Practise Council; if necessary. I am not going to regurgitate the facts as per the founding affidavit.

[20] I considered the arguments by the respondent based on the matter of Mtokonya v Minister of Police 2017 (11) BCLR 1443 (CC).[5] I agree with the finding but it is not to be applied in the context of this case. The applicant cannot be penalised here.

[21] The said argument of counsel for the respondent in the Heads of Argument at paragraph 20 that if in all cases litigants can escape blame by pleading ignorance of the law and avoid compliance therewith by the legal representative of procedural rules, chaos will reign; is true. A legal representative does indeed conduct litigation for and on behalf of the client and the applicant cannot always escape liability for the default of the legal representative chosen by him.

[22] The facts show that the applicant is not to blame. From the evidence the legal representatives on both sides dragged their feet.

IV CONCLUSION

[23] Legal certainty and effective litigation, as are protected by the legislator, are not affected on the facts of this case. The matter

must now go to trial and both parties have ample evidence to their disposal to do so. The case is not complex. Condonation will serve justice and not restrict it.

V COSTS

[24] The opposition of the application was not unreasonable taking into consideration the time that passed. The applicant does stand before the court with his proverbial hat in hand. Therefore, the applicant must carry the costs.[6]

VI ORDER

1. The applicant’s failure to comply with the provisions of sections 3(1) and (2) of the Institution of Legal Proceedings against Certain Organs of the State Act 40 of 2002 is condoned in terms of section 3(4) of the aforesaid Act.

2. The applicant to carry the costs of the application.

M OPPERMAN, J

Appearances:

For applicant: Adv. P.J.J. Zietsman

Instructed by:

Honey Attorneys

Ref: HLB/Suzell/125348

For respondents: Adv. B.S. Mene SC

Instructed by:

Office of the State Attorney

Bloemfontein

Ref: 610/201700856/P16N

[1] Iruoma Onyinye Obiokoye, Eradicating delay in the administration of justice in African courts: a comparative analysis of South African and Nigerian courts, URI: http://hdl.handle.net/2263/942, Date: 2005. (20 February 2020)

[2] Mtokonya v Minister of Police 2018 (5) SA 22 (CC), Cleophas v Mtethwa NO Minister of Safety and Security of The Government of South Africa and Others (65755 -2011) [2014] ZAGPPHC 119 (17 March 2014), Labuschagne v Minister van Justisie 1967 (2) SA 575 (A), Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA), MEC for Education, Kwazulu-Natal v Shange 2012 (5) SA 313 (SCA), Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA), Minister of Safety and Security v De Witt [2008] ZASCA 103; 2009 (1) SA 457 (SCA), Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC), Moloi v Minister of Safety And Security and Others (3861-2013) [2014] ZAFSHC 76 (12 June 2014), Potgieter v MEC for Police, Roads And Transport Free State (3859 - 2015) [2016] ZAFSHC 124 (11 August 2016) and Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA).

[3] Section 36 of The Constitution of the Republic of South Africa, 1996 decrees that: “36. Limitation of rights. — (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

[3] Section 36 of The Constitution of the Republic of South Africa, 1996 decrees that:

“36. Limitation of rights. — (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

[4] Headnote with reference to the relevant paragraphs.

[5] [63] Furthermore, to say that the meaning of the phrase "the knowledge of . . . the facts from which the debt arises" includes knowledge that the conduct of the debtor giving rise to the debt is wrongful and actionable in law would render our law of prescription so ineffective that it may as well be abolished. I say this because prescription would, for all intents and purposes, not run against people who have no legal training at all. That includes not only people who are not formally educated but also those who are professionals in non-legal professions. However, it would also not run against trained lawyers if the field concerned happens to be a branch of law with which they are not familiar. The percentage of people in the South African population against whom prescription would not run when they have claims to pursue in the courts would be unacceptably high. In this regard, it needs to be emphasised that the meaning that we are urged to say is included in section 12(3) is not that a creditor must have a suspicion (even a reasonable suspicion at that).

[6] Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA) and MEC for Education, Kwazulu-Natal v Shange 2012 (5) SA 313 (SCA).