Wessels and Others v Maluti-A-Phofung Municipality and Another (1095/2021) [2021] ZAFSHC 195 (10 September 2021)

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 no: 1095/2021

In the matter between:

DANIEL WYNAND WESSELS 1st Applicant

JOHANNES PETRUS DU PLOOY 2nd Applicant

ALIDA CORNELIA DU PLOOY 3rd Applicant

KILLIAN JOHANNES KIRCHNER (Jnr) 4th Applicant

t/a as KJ KIRCHNER BOERDERY

PAUL JOËL HAVEMANN LOURENS 5th Applicant

WILLEM DANIEL FRANCOIS VILJOEN 6th Applicant

ELIZABETH GEZINA CILLIERS 7th Applicant

PIETER JACOBUS SWART 8th Applicant

and

MALUTI-A-PHOFUNG MUNICIPALITY

LOCAL MUNICIPALITY 1st Respondent

THABO MOFUTSANYANA DISTRICT

MUNICIPALITY 2nd Respondent

JUDGMENT BY: CHESIWE, J

HEARD ON: 12 AUGUST 2021

DELIVERED ON: 10 SEPTEMBER 2021

[1] This matter came before me in the opposed motion court, in which the Applicants seek an order in terms of which they are granted condonation for their failure to serve a notice as contemplated in Section 3(4)(a) and (b) of the Institution of Legal Proceeding Against Certain Organs of State Act 40 of 2002, (the Act). The Applicants are the Plaintiffs in the main action under different case numbers. They individually claimed damages, but are joint in the condonation application under case number 1095/2021.

[2] The Applicants all suffered damages due to veld fires which allegedly originated from the Kestell Dumpsite on 3 September 2014. The Applicants issued and served the summons on 29 August 2017 and 31 August 2017. Their claim against the Respondents amounts in total to R4 432 501,39.

[3] The Respondents raised a special plea based on the Applicants’ failure to deliver a notice as envisaged in Section 3 of the Act. The Applicants approached the court for condonation.

[4] The relief sought by the Applicants is noted as follows in the Notice of Motion:

“1. Condoning the applicants' failure to have complied timeously as against the respondents with regards to the requirements of Section 3(2)(a) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002;

2. The costs of this application shall be borne by the applicants, alternatively shall be costs in the cause of the main actions under case numbers stated above. (Save in the event of unreasonable opposition, in which event the costs occasioned by such opposition are sought).”

[5] The background on this matter briefly is as follows: The Applicants are a group of farmers farming around the Kestell area, which is within the geographical area of the Respondents. Some of the farms belonged to and/or are leased by the Applicants. On 3 September 2014, the Applicants alleged that a veld fire originated from the Kestell dumping site and spread to the various farms. The dumping site is the property of the Respondents.

[6] The Applicants contend that the veld fires are due to the negligence of the Respondents in that the Respondents failed to properly ensure that the site was properly controlled, regulate waste disposal, operate and managed the dumping site to prevent any spreading of veld fires. The Applicants suffered various damages to their veld and fodder, infrastructure, fencing, material, loss of livestock and firefighting costs. The First and Second Respondents contention is that the delay is excessive and unreasonable, for the fact that the cause of action was in 2014. The Respondents’ admitted that there was a fire in the Kestell district, but specifically pleaded that the fire was not a veld fire as contemplated in the Veld and Fire Act 101 of 1998.

[7] The issue for determination is whether the Applicants has established good cause for their failure of non-compliance and whether the Respondents will be unreasonably prejudiced by the failure.

[8] Counsel on behalf of the Applicants, Adv. Zietsman in his oral argument and written heads of argument contends that the Applicants are not to be denied their rights to enforce their claim for fire damages. He submitted that, if there is any undue prejudice of the Respondents, it should not outweigh the rights of the Applicants to have their matter heard and that the Respondents would not suffer any prejudice if the order for condonation was granted. He submitted that the claim for action has not been prescribed, and it was therefore not applicable, except the plea of non-compliance with the Section 3 Notice. Counsel further submitted that the Applicants have set out the necessary prospects of success in their founding affidavit as well as the explanation for their delay.

[9] Counsel on behalf of the Respondent, Adv. Pienaar in oral argument and the written heads of argument submitted that the Applicants have not met all the requirements as envisaged in section 3 of the Act. He further submitted that the Applicants failed to provide the notice in terms of the Act. Counsel submitted that the Applicants failed to show that there was prospects of success against the First Respondent; that the Applicants failed to address their locus standi and the damages they suffered; that the Applicants unreasonably delayed in the institution of the condonation application and that the officials involved in the matter are no longer in the employment of the Respondents.

[10] Section 3(4) of the Act provides for condonation in the event of notice not being given or is defective. It states as follow:

"(a) If an organ of the state relies on a creditor's failure to serve 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 the 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.”

[11] The approach to condonation in terms of the Legal Proceedings Act is set out in Madinda v Minister of Safety and Security[1] as follows:

“There are two main elements at play in s (4)(b), vis the subject’s right to have the merits of his case tried by a court of law and the right of an organ of state not to be unduly prejudiced by delay beyond the statutorily prescribed limit for the giving of notice. Subparagraph (iii) calls for the court to be satisfied as to the latter. Logically, subparagraph (ii) is directed, at least in part, to whether the subject should be denied a trial on the merits. If it were not so, consideration of prospects of success could be entirely excluded from the equation on the ground that failure to satisfy the court of the existence of good cause precluded the court from exercising its discretion to condone… As I interpret the requirement of good cause for the delay, the prospects of success are a relevant consideration.”

[12] The Applicants approached Mr Lourens Odendaal (Odendaal) to assess the merits of their claim. Mr. Odendaal then instructed Mr. Buchner to take the Applicants matter further, as Mr. Odendaal left Honey Attorneys to join Meades Attorneys. It appears that the Applicants were assisted by various Attorneys and somehow their matter was neglected. This is further noted in an email addressed to Mr Odendaal, dated 07 October 2014, attached as annexure “ADW7(a).”[2] Between the various Legal Representatives were several telephone communications and a series of correspondence (page 110 to 139 of the application). The Applicants went as far as to obtain satellite imagery to depict the various properties that were damaged by the fire. The Applicants further appointed Mr. Bennet to conduct an assessment of the losses incurred due to the fire. From all the work and investigation done by the Applicants they had to ensure that before any action is launched, they have the correct evidence and information regarding the fire.

[13] The Applicants, through their Attorney, addressed the first letter of demand, annexure "ADW9”, dated 31 March 2017. The letter was addressed to both Respondents and the heading of it is as follows: “VELD FIRES: 03 SEPTEMBER 2014 – KESTELL DW WESSELS & 6 OTHERS//MALUTI-A-PHOFUNG MUNICIPALITY NOTICE IN TERMS OF SECTION 3 OF THE INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE ACT 40 OF 2002”. For the First Respondent, a “Jabulile Mphuthi” (Secretary: Corporate Services) acknowledged receipt thereof on 3 May 2017 at 10:05. For the Second Respondent, a "Mamohapi” (Secretary to the Municipal Manager) acknowledged receipt on 3 May 2017. Indeed, these notices were approximately 2 years out of time. The Applicants in the founding affidavits, confirmatory affidavits and supporting affidavits, explained that they did not understand nor were even aware of the provisions of the Act. The Applicants mentioned that they trusted their Legal Representative to do the necessary legal work. Adv. Zietsman on behalf of the Applicants in oral arguments submitted that he is part of the delay in filing the condonation application and that the Applicants should not be denied their right to litigation.

[14] The Respondents do not attack prejudiced, but rather the locus standi of the Applicants. The Applicants in the individual matters in their main action clearly explained in the particulars of claim their locus standi in respect of the different farms. The First Applicant indicated that he has a lease on the farm.[3] The Second and Third Applicants,[4] stated that they are the owners of the farm. The Eighth Applicant,[5] also in his particulars of claim stated that he leases the farm and has attached a copy of the contract to the summons. The Applicants,[6] have clearly indicated their locus standi in respect of these farms.

[15] The Applicants in terms of Section 3(1) are indeed obliged to notify in writing, the Respondents of any intended legal proceedings within six months from which the debt became due. The Applicants served the Section 3 notice on 31 March 2015, which is approximately 2 years out of time. It is for this reason that the Applicants approached the Court with a condonation application. The Applicants having being assisted by their Legal Representative were indeed under the impression that the Respondents were satisfied with the notice, until such time the Respondents raised the special plea in October 2017, based on the non-compliance of the Applicants. The Applicants’ Attorney wrote a letter dated 6 December 2017, requesting that the Respondents' Attorneys condone the late delivery of the Section 3 notices, which correspondence was followed with a refusal to condone the late delivery. The Applicants cannot be faulted concerning the notices, or the lateness thereof, though it did not comply with form and services as envisaged in the Act. However, the Applicants through the correspondence between the parties was in fact alerting the Respondents of a potential litigation in this matter. The Applicants should therefore not be denied the right to have the merits of the case tried by a court of law. The amounts claimed for damages by the Applicants is quite substantial, and that cannot be ignored by this court.

[16] The Respondents do not raise prescription in their plea, except the issue of non-compliance with the Act, by the Applicants. The Applicants’ claim for damages caused by the fire does need to be ventilated before a court of law. To shut the door in the Applicants face is not in the interests of justice. The Respondents in their plea admitted their duty of care; in so far as the provisions of the Local Government Municipal Structures Act 117 of 1998 (Structures Act); the Respondents having admitted that a fire raged in the Kestell District on 3 September 2014, but denied that the fire was a veld fire in terms of the National Veld and Forest Fire Act 101 of 1998 (the Veld Fire Act).

[17] In terms of section 3(4)(b), the court may grant an application for condonation if it is satisfied that the requirements for condonation are met by the litigants seeking indulgence. In my view, prescription has not been extinguished, good cause exists for the Applicants, and the Respondents will not unreasonably be prejudice by this failure to comply. A further requirement of good cause involves the examination of all the factors, bearing in mind, fairness of granting the relief sought and proper administration of justice. It is therefore fair and in the interest of justice, that the Applicants be condoned and granted the opportunity to have the merits tested.

[18] It is well settled that in considering condonation applications, the court has the discretion to be exercised judicially upon consideration of all facts, and in essence, it is a question of fairness for both parties. Condonation is not a mere formality and it is not to be had “merely” for the asking.[7]

[19] In the MEC for Education, KwaZulu Natal v Shange,[8] it was stated that:

“The court is to exercise a wide discretion, that good cause may include a number of factors that are entirely dependent on the facts of each case, and that the prospects of success of the intended claim play a significant role.”

[20] From the Applicants’ founding affidavit, confirmatory and supporting affidavits, in my view there are prospects of success. When a court decides to grant or refuse condonation, it exercises discretion based on the balancing of the relevant factors. Section 3(4)(b) of the Act has long been recognized as setting a standard that is not proof on a balance of probability. Rather it is the overall impression made on a court, which brings a fair mind to the facts set up by the parties.[9] (Madinda supra)

[21] As correctly stated by the Applicants’ Legal representative, the Respondents do not mention who are the officials that were involved on the mentioned day of the fire nor does the Respondents mention the officials that were on duty on the day of the fire, except to mention that the dumpsite has been closed since 2004. However, the Respondents had appointed/instructed ShayLee Management Services[10] (“SMS”) to investigate the fire and the claims of the Applicants and to file a report in respect of their investigations. Further, that the First Respondent pleaded that it is a member of the Fire Protection Association. Based on these two organizations, the Respondents can obtain information from them, and will thus not be prejudiced by the relief sought. The Legal Representative of the Applicants correctly submitted that even if it was closed, it remains the property of the Respondents. In any event, the persons involved and responsible for the management of the dumping site, and could easily be traced by the Respondents.

[22] Indeed, the rationale for demanding prior notification by a state organ of any intention to be sued, is that it needs the opportunity to investigate the claims against it and to decide beforehand, whether it is worth litigating at the public’s expense or whether to accept, reject or settle the claim. In my view, the correspondence that went back and forth between the parties including the last letter dated 05 February 2017, which reads: “Ons gaan voort met n kondonasie-aansoek in terme van die Wet op Instel van Regsgedinge teen Sekere Staatsorgane 40 van 2002.” This is already an indication that litigation will commence.

[23] Based on the continued correspondence between the attorneys of the Applicants as well as the various investigations that the Applicants conducted to establish the fire origination and damages caused by the fire to their respective farms, this can be regarded as a reasonable delay. The Applicants gave a detailed explanation as to all their attempts to have a proper case before approaching an Attorney as this matter involved various farms and that could also have resulted in a reasonable delay. The Applicants can therefore not be faulted for having investigated the matter thoroughly, obtained satellite imagery, taking photos of the dumpsite, as well as appoint an assessor to determine the fire damage to all the farms. Counsel for the Applicants also took responsibility for the delay as he submitted that he took long to draft the condonation application. I am inclined to agree with Counsel for the Applicants that they should not be denied their right to litigate due to circumstances beyond their control.

[24] In my view, the Applicants have shown good cause exists and have given a detailed explanation of the delay. The explanation given by the Applicants is reasonable and acceptable and thus should be granted the relief sought.

[25] The Respondents will not be prejudiced by the relief sought as indicated above. The issue of the officials that are no longer in the employment of the Respondents can be easily resolved with the report compiled by “SMS”.

[26] Adv. Zietsman in respect of costs submitted that if the court should grant a costs order, as he took responsibility for the delay, the court may order a cost de bonis propriis against him. Counsel for both the First and Second Respondents showed collegiality by disagreeing that their colleague be burdened with a punitive personal cost. I am therefore not inclined to grant such an order.

[27] Accordingly, it is ordered as follows:

1. Condonation is granted to the Applicants for failure to serve a notice as contemplated in section 3(1)(a) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 within a period laid down in Section 3(2)(a) of the Act.

Costs to be adjudicated in the main action. S. CHESIWE, J

On behalf of Applicants: Adv. PJJ Zietsman

Instructed by:

Honey Attorneys

BLOEMFONTEIN

C/o Niemann Grobbelaar Attorneys

On behalf of First Respondent: Adv. CD Pienaar

Instructed by: Rossouws Attorneys

On behalf of the Second Respondent: Adv. MA Mavodze

Instructed by:

C/o Rampai Attorneys

[1] 2008 (4) SA 312 (SCA)

[2] Page 110 of the application.

[3] Wessels Daniel Wynand under case number 4462/2017

[4] Petrus Du Plooy and Alida Du Plooy under case number 4375/2017.

[5] Swart Pieter Jacobus under case number 4374/2017.

[6] Lourens Paul Havemann case number 4376/2027, Viljoen Willem Daniel Francois case number 4372/2017, Cilliers Elizabeth Gezina case number 4373/2017, Kirchner Killian Johannes case number 4463/2017.

[7] (Uitenhage Transnational Local Council v South African Revenue Services, 2004 (1) SA 292 (SCA), at para (6). The court has to take into consideration the degree of lateness, the reasons for lateness, prospects of success and prejudice to the respondents. The Applicants must show that it did not wilfully disregard timeframes provided for in the Rules including the provision of the Act.

[8] 2012 (5) SA 313 (SCA)

[9] Madinda v Minister of Safety and Security 2008 (4) 312 (SCA), see Minister of Agriculture and Land Affairs v CJ Rance 2010 (4) SA 109 (SCA).

[10] Paragraph 61 of the opposing Affidavit of the First Respondent, The said report is privileged.