The judgment concerned an application for condonation for the late delivery of a statutory notice under section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (Act) for a loss of support claim. The purpose of the notice is to notify an organ of state of a litigant’s intention to institute legal proceedings against it for the recovery of a debt. Importantly for this matter, the Act prescribes that this notice must be delivered within six months of the date that the debt becomes due.

Factual background

On 29 May 2011, Ms Rossouw’s husband and the father of her children was involved in a motor vehicle collision in the Free State and sustained such severe bodily injuries that he died the following day.

Three weeks after his death, Rossouw instructed the first respondent, Blignaut & Wessels, as her attorneys to pursue an action for loss of support against those responsible for her husband’s death. Blignaut & Wessels advised Rossouw institute proceedings against the Road Accident Fund (RAF).

One of the main contentions of Rossouw was that the accident was a direct result of the road being riddled with potholes, in a state of disrepair and without any appropriate warning signs. This claim, it later transpired, lay against the Member of the Executive Council for Police, Roads and Transport, Free State Province (MEC) and not the RAF. The MEC was responsible for maintaining the roads in the Free State. Having proceeded against the incorrect party, Blignaut & Wessels informed Rossouw in 2017 that her claim for loss of support had prescribed but that the claim of her children had not.

She then instructed new attorneys to pursue the loss of support claim on behalf of her minor children, and she was advised to deliver a notice in terms of section 3(1)(a) of the Act. For some unexplained reason, the notice was delivered only on 13 December 2018. Summons was served on the MEC on 7 May 2019. In defence of the claims in the summons, the MEC raised a special plea alleging that the notice was delivered out of time and was therefore not compliant with section 3(2) of the Act. Rossouw subsequently applied for condonation for the late filing of the notice.

In the High Court

The High Court dismissed her condonation application as her delay in delivering the notice was “extreme” and her explanation for that delay was insufficient. The court held that she had instructed attorneys after the death of her husband and “lay supine” until she was advised that her claim had prescribed, whereafter she instructed new attorneys, and the notice was delivered another year after that.

The High Court also found that she had no prospects of success in the action as her evidence was weak, and that Rossouw had failed to satisfy the onus for the absence of unreasonable prejudice on the part of the MEC. The High Court considered the interests of the minor children, but concluded that, given the unexplained delays and the lack of prospects of success, the children’s rights were not decisive.

Rossouw then took the judgment on appeal to the full bench of the High Court and was again unsuccessful in her condonation application. She then sought special leave to appeal to the SCA.

In the SCA

The SCA’s judgment highlighted that there were two questions to be considered:

1. Whether Rossouw established good cause for the granting of condonation.
2. Whether the MEC will be unreasonably prejudiced by Rossouw’s delay in delivering the notice.

Good cause for condonation

The SCA held that good cause is informed by, inter alia, the reasons for the delay, the sufficiency of the explanation, the bona fides of the applicant, any contribution by other persons to the delay and the applicant’s responsibility therefore, and the prospects of success in the main action.

In relation to the reason for the delay, the SCA held that Blignaut & Wessels were entirely to blame for the delay in delivering the notice in the period between 29 November 2011 and 2017, as they incorrectly went after the RAF and allowed her claim to prescribe in their hands.

The delay between 2017 and 13 December 2018, when the notice was ultimately delivered by Rossouw’s new attorneys, also could not reasonably be attributed to Rossouw. It rested on her attorneys to deliver the notice timeously upon being instructed by Rossouw to pursue the claim for her children. The position would have been different had Rossouw delayed in instructing attorneys or been a passive litigant. The court therefore concluded that she had done all that she could and that she had delivered an adequate, albeit not entirely satisfactory, explanation for the belated delivery of the notice.

As to prospects of success, the SCA held that Rossouw need not convince the court that she would be successful at trial and that a prima facie case and bona fide intention to have the matter tried is sufficient. The High Court in the condonation application was not a trial court and had misdirected itself in the assessment of Rossouw’s prospects of success by attempting to evaluate her evidence at that stage already.

Prejudice to the MEC

The MEC argued that due to the delay, vital documentary evidence which could have been used in defending the action may have been destroyed or misplaced, and that the personnel with the relevant knowledge may no longer be employed by the MEC or may have faded memories.

The SCA relied on Premier, Western Cape v Lakay [2011] ZASCA 224; 2012 (2) SA 1 (SCA) which held that the effluxion of time causing evidence to deteriorate was not sufficient to constitute unreasonable prejudice. The SCA was not convinced by the MEC’s speculative argument relating to the availability of documents and status of employees with knowledge of the matter. Firstly, she had not shown that she had made an attempt to establish the true position of the situation – she had not investigated availability and/or reliability of documents or employee witnesses. Secondly, there was documentary and oral evidence already shown to be available for the MEC to construct a defence to the action. Instead of dealing with this evidence on its merits, the MEC merely relied on the fact that it, in her view, constituted hearsay evidence.

The SCA confirmed that it was satisfied that Rossouw had shown good cause and that the MEC would not be unreasonably prejudiced by the late filing of the notice, and accordingly granted condonation for the delay.

Constitutional considerations

The SCA also highlighted that two constitutional rights were implicated, namely section 28, which entrenches the importance of children’s rights in every matter concerning them, and section 34, which guarantees the right to access to courts.

The SCA held that the High Court failed to distinguish between the rights of the children and those of Rossouw. The right to access to courts in section 34 extends to children, and the High Court paid no regard to these rights. The SCA held that the question that should have occupied the mind of the High Court was whether it was in the children’s interests to deny them the right to have their loss of income claim determined by a court of law, based on procedural failings of others. Therefore, the SCA concluded that had the children’s rights been considered properly, it would have led to the conclusion that the children’s right to have their claim for loss of support determined by a court should be vindicated.

Special leave to appeal

In order to be granted special leave to appeal, a litigant must show, in addition to prospects of success on appeal, special circumstances justifying the granting of special leave. This can include the fact that a matter is of significance to the public or the parties. The SCA held that this matter was of immense importance to the minor children and that they must be given a chance to have their case against the MEC heard in accordance with section 34 of the Constitution. Special leave was therefore granted and the SCA held that the matter must proceed to trial.

Conclusion

It is trite that condonation is not for mere asking, however, this judgment shows the court’s preparedness to relax the requirements for the granting of condonation – even where an explanation for the delay has not been entirely satisfactory – where:

• constitutional rights are at stake, especially the rights of children;
• the delay cannot be laid at the litigant’s door; and
• prejudice is purely speculative.

This judgment is also a cautionary tale not only about undue delays in acting, but also about relying on speculative grounds to claim prejudice.