Ethekwini Municipality vs. Crimson Clover Trading 17 (Pty) Ltd t/a Island Hotel - (01 Jul 2021)

Unexplained delay in filing application cannot be condoned

Limitation

The pertinent issue in present appeal is whether condonation ought to have been granted to the Respondent, for its failure to serve on the Appellant, Ethekwini Municipality, a notice in terms of Section 3(2) of the Institution of Legal Proceedings against Certain Organs of State Act, 2002. The notice serves to notify the Appellant, within six months of the debt becoming due, of the facts giving rise to the debt and such further particulars of the debt as are in the Respondent’s knowledge.

In line with Section 3(2)(a) of the Act and the principles propounded in the various judgments, the time limit for filing the notice in terms of Section 3(2) of the Act against an organ of state is six months. Therefore, if the creditor is out of time, condonation must be sought within the prescripts of Section 3(4) of the Act.

Section 3(3) of the Act provides that, the debt does not arise until the creditor has knowledge of the identity of the organ of state and the facts giving rise to the debt. It reads further that ‘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’. Section 3(3)(a) of the Act determines when the creditor must lodge the notice with the State organ. It gives the creditor reasonable latitude to determine when they have deemed knowledge of the cause of action and the debtor. Nothing precludes the creditor from explaining that during the prescribed six-month period, they were not yet in a position to identify the facts with reasonable certainty or to identify the debtor.

The unexplained delay in the delivery of the notice and the change in the cause of action deprived the Appellant of the opportunity to investigate the matter on time, thereby prejudicing the appellant. The administration of justice requires that such matters be dealt with expeditiously and efficiently. Present Court is not satisfied that, the Respondent should have been granted condonation by the high Court. The order of the high Court is set aside. Accordingly, the application for condonation is dismissed.

Tags : CONDONATION GRANT LEGALITY