Schlebusch v Mohokare Plaaslike Munisipaliteit (567/2005) [2007] ZAFSHC 64 (11 October 2007)

Schlebusch v Mohokare Plaaslike Munisipaliteit (567/2005) [2007] ZAFSHC 64 (11 October 2007)

The court held that section 3(4) of Act 40 of 2002 allows a creditor to apply for condonation for late notice even after proceedings have been instituted. The definition of 'creditor' in the Act includes a person who has already instituted proceedings, and there is no time limitation in the Act restricting when condonation may be sought. The absence of objection by the state organ prior to summons does not preclude it from raising the issue of late notice in its plea. The court found that the plaintiff is entitled to apply for condonation at this stage, and the defendant's special plea is sustainable in law. The plaintiff's exception was dismissed, and the statutory interpretation...

Citation
[2007] ZAFSHC 64
Parties
Plaintiff: Alwyn Louis Schlebusch; Defendant: Mohokare Plaaslike Munisipaliteit; Respondent: Gideon Odendaal
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 October 2007
Case Number
567/2005
Procedural Posture
Civil Procedure / Exception to Special Plea in Amended Plea
Outcome
Exception dismissed with costs.
Judges
Van Zyl R
Legal Topics
Notice to State Organs, Condonation, Special Plea, Interpretation of Statutes
Civil Procedure Delict Notice to State Organs Condonation Special Plea Interpretation of Statutes

Case Brief

Summary, issues, holding and outcome

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Parties

Alwyn Louis Schlebusch

Plaintiff

Mohokare Plaaslike Munisipaliteit

Defendant

Gideon Odendaal

Respondent

Procedural Posture

Civil Procedure / Exception to Special Plea in Amended Plea

Legal Issues

  1. 1 Whether a state organ may for the first time in its plea rely on the plaintiff's failure to give timeous notice under section 3(2)(a) of Act 40 of 2002.
  2. 2 Whether the plaintiff may apply for condonation after the institution of proceedings where notice was not given within the prescribed period.
  3. 3 Whether the absence of objection by the state organ prior to summons precludes reliance on late notice.

Ratio Decidendi

The court held that section 3(4) of Act 40 of 2002 allows a creditor to apply for condonation for late notice even after proceedings have been instituted. The definition of 'creditor' in the Act includes a person who has already instituted proceedings, and there is no time limitation in the Act restricting when condonation may be sought. The absence of objection by the state organ prior to summons does not preclude it from raising the issue of late notice in its plea. The court found that the plaintiff is entitled to apply for condonation at this stage, and the defendant's special plea is sustainable in law. The plaintiff's exception was dismissed, and the statutory interpretation...

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed.
  • The plaintiff is ordered to pay the costs of the exception.