Martha Johanna Petronella Rossouw v Blignaut & Wessels and Another

Martha Johanna Petronella Rossouw's husband died on 30 May 2011 following a motor vehicle accident allegedly caused by potholes on a road maintained by the Free State Department of Police, Roads and Transport. She was left with two minor children aged four years and six months. Three weeks after her husband's death, she instructed Blignaut & Wessels attorneys to pursue a claim for loss of support. The attorneys incorrectly pursued a claim against the Road Accident Fund instead of the MEC for Police, Roads and Transport. The statutory notice required by s 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was never served within the prescribed six months (by 29 November 2011). In 2017, she was informed that her personal claim had prescribed but her children's claim could still be pursued. She terminated Blignaut & Wessels's mandate, instructed new attorneys, and the statutory notice was finally delivered on 13 December 2018 - over seven years late. Summons was issued on 23 April 2019. The MEC raised a special plea for non-compliance with s 3(2), prompting the condonation application.

• Whether good cause was established for the late delivery of a statutory notice in terms of s 3(4)(b)(ii) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002
• Whether the applicant had reasonable prospects of success in the loss of support claim
• Whether the organ of state would suffer unreasonable prejudice if condonation was granted
• The extent to which a litigant should be absolved from her attorneys' lapses in failing to comply with procedural requirements
• Whether the best interests of minor children in terms of s 28(2) of the Constitution should influence the exercise of discretion to grant condonation
• Whether the right of access to courts in terms of s 34 of the Constitution is implicated by time-bar provisions and how it should be balanced against other considerations
• The requirements for granting special leave to appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013

By majority decision: (1) Special leave to appeal granted. (2) The appeal is upheld with costs, including costs of two counsel. (3) The Full Court order is set aside and replaced with an order granting condonation for failure to serve the statutory notice within the prescribed period, with the MEC ordered to pay costs of the application. The matter will now proceed to trial on the merits.

The binding legal principles established by the majority are: (1) When assessing "good cause" under s 3(4)(b)(ii) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, failure to deliver a statutory notice timeously due to attorneys identifying the wrong party to sue can constitute a reasonable explanation where the litigant exercised reasonable diligence in instructing attorneys and following up. (2) A litigant should not automatically be blamed for attorneys' procedural lapses, particularly where the reasons for delay lie peculiarly within the attorneys' knowledge and the litigant took reasonable steps to have the matter prosecuted. The principle in Saloojee applies only where it has become obvious to a layperson that there is protracted delay and the litigant sits passively by. (3) When assessing prospects of success for condonation purposes, courts must not subject the applicant's evidence to trial-level scrutiny but should assess whether a prima facie case and bona fide intention to have the matter tried has been established. (4) To establish "unreasonable prejudice" under s 3(4)(b)(iii), an organ of state must demonstrate real and specific prejudice, not speculative concerns about possibly lost documents or faded memories. General assertions are insufficient. (5) Although the onus to establish absence of unreasonable prejudice rests on the applicant, where grounds of prejudice lie peculiarly within the knowledge of the respondent, courts should be slow to assume prejudice for which the respondent lays no factual basis. (6) In matters concerning children, courts must give substantive and independent consideration to children's constitutional rights under s 28(2) and treat children as individual rights-bearers, not mere extensions of their parents. (7) Time-bar provisions like s 3(1)(a) inherently implicate the s 34 right of access to courts, and courts should anxiously reflect on this right and endeavor to vindicate rather than negate it. (8) In condonation applications under the Act (which concern enforcement of rights rather than non-observance of court procedure), costs should follow the result where opposition is maintained.

The majority made several significant obiter observations: (1) Makgoka JA noted that it would have been "ideal" for the attorney to have explained delays in a confirmatory affidavit, though this was not fatal to the application. (2) The majority quoted approvingly from Le Roux v Johannes G Coetzee regarding prescription provisions: "The proposition that a claim, otherwise valid in law and even one that is unassailable, may be extinguished if not asserted within the time provided by the law, is unsettling" as it negates the substance of the s 34 constitutional right. (3) The majority observed that a survey of jurisprudence reveals "an elastic and liberal approach to vindicate" the right of access to courts. (4) Regarding children's rights, the majority emphasized the Constitutional Court's statement in Pridwin that children are "individual right-bearers and not 'mere extensions of [their] parents, umbilically destined to sink or swim with them'". (5) The majority noted that s 28(2) of the Constitution and the UN Convention on the Rights of the Child require courts to "give sufficient independent and informed attention to the interests of the children, in particular, the impact of a decision on them." (6) Makgoka JA observed that where a bare denial is pleaded (as opposed to a positive defense), "whatever evidence the applicant would present during the trial would occasion no prejudice of whatever nature to the department." (7) The minority observed that "Granting condonation in an action that lacks prospects of success is not in the best interests of the minor children" and that the duty to consider children's interests "does not, without more, imply that in all cases where they are time barred from proceeding to trial, condonation should be granted simply because the matter involves minor children."

This case is significant for several reasons: (1) It clarifies the approach courts should adopt when assessing "good cause" under s 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, particularly regarding the extent to which litigants should be absolved from their attorneys' procedural lapses. (2) It confirms that when assessing prospects of success in condonation applications, courts should not subject evidence to trial-level scrutiny but should assess whether a prima facie case exists. (3) It emphasizes that organs of state must establish real and specific prejudice, not speculative concerns, when opposing condonation applications. (4) It reinforces the importance of giving substantive consideration to children's constitutional rights under s 28(2) (best interests of the child) and s 34 (access to courts) when exercising discretion in procedural matters affecting children's substantive claims. (5) It demonstrates the court's willingness to adopt an elastic and liberal approach to vindicating the right of access to courts, particularly where time-bar provisions would otherwise extinguish otherwise valid claims. (6) The split decision reflects ongoing tension between strict adherence to procedural requirements and substantive justice considerations, particularly where vulnerable litigants like children are affected.