Ethekwini Municipality v Crimson Clover Trading 17 (Pty) Ltd t/a Island Hotel

The respondent owned the Island Hotel, which was flooded and damaged on 8 May 2016. Investigations suggested the flooding was caused by a sand berm blocking the Isipingo River mouth. By October 2016 the respondent had formed a prima facie view that the municipality was responsible. Despite this, the respondent only served a notice in terms of s 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 on 19 July 2017, outside the six-month period. The respondent later applied for condonation, citing delays due to investigations and a PAIA request. The High Court granted condonation. The municipality appealed.

The appeal was upheld with costs. The High Court’s order granting condonation was set aside and replaced with an order dismissing the application for condonation with costs, including costs of two counsel.

The case reaffirms the strict and conjunctive requirements for condonation under s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act. It underscores that litigants must provide a full explanation for delays, may not shift causes of action, and that courts should not rely on extraneous public interest considerations when adjudicating private claims against organs of state.