Swart v MEC Police, Roads, Transport for the province of the Free State (912/2018) [2021] ZAFSHC 79 (11 March 2021)

Swart v MEC Police, Roads, Transport for the province of the Free State (912/2018) [2021] ZAFSHC 79 (11 March 2021)

The court found that the applicant's delay in serving the notice was due to a bona fide mistake by his attorney, who initially lodged the claim against the wrong entity. The applicant acted promptly in instructing his attorneys after the accident, and the delay was not attributable to him but to his attorney's lack of diligence. The court admitted the hearsay evidence in the interests of justice, as its rejection would unfairly curtail the applicant's right to have his claim heard. The respondent failed to demonstrate unreasonable prejudice resulting from the late notice, as it had investigated the merits and did not specify which witnesses could not be traced or what evidence was lost....

Citation
[2021] ZAFSHC 79
Parties
Applicant: Swart Gerhardus; Respondent: MEC Police, Roads & Transport for the province of the Free State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 March 2021
Case Number
912/2018
Procedural Posture
Civil Application / Application for Condonation of Late Notice Under S 3 Institution of Legal Proceedings Against Certain Organs of State Act
Outcome
Condonation for the late service of the notice is granted to the applicant. No order as to costs.
Judges
NS Daniso
Legal Topics
Condonation, Institution of Legal Proceedings Against Organs of State, Late Notice, Negligence, Road Maintenance, Hearsay Evidence
Civil Procedure Delict Condonation Institution of Legal Proceedings Against Organs of State Late Notice Negligence Road Maintenance Hearsay Evidence

Case Brief

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Parties

Swart Gerhardus

Applicant

MEC Police, Roads & Transport for the province of the Free State

Respondent

Procedural Posture

Civil Application / Application for Condonation of Late Notice Under S 3 Institution of Legal Proceedings Against Certain Organs of State Act

Legal Issues

  1. 1 Whether the applicant has shown good cause for the late service of the notice required by section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act.
  2. 2 Whether the respondent was unreasonably prejudiced by the late service of the notice.
  3. 3 Whether hearsay evidence in the applicant's affidavits should be admitted in the interests of justice.

Ratio Decidendi

The court found that the applicant's delay in serving the notice was due to a bona fide mistake by his attorney, who initially lodged the claim against the wrong entity. The applicant acted promptly in instructing his attorneys after the accident, and the delay was not attributable to him but to his attorney's lack of diligence. The court admitted the hearsay evidence in the interests of justice, as its rejection would unfairly curtail the applicant's right to have his claim heard. The respondent failed to demonstrate unreasonable prejudice resulting from the late notice, as it had investigated the merits and did not specify which witnesses could not be traced or what evidence was lost....

Court Disposition

Condonation for the late service of the notice is granted to the applicant. No order as to costs.

Orders

  • Condonation is granted to the applicant for the late service of the notice in terms of section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002.
  • No order is made in respect of costs.