The applicant, Graham Webber, was hired to murder Will-Carl Booysen, which he did on 29 September 2016. The following day, while fleeing, he was shot in the back by members of the South African Police Service (SAPS), resulting in a spinal cord injury that left him a functional paraplegic. He was hospitalised until 3 December 2016. Nearly three years after the incident, on 11 June 2019, the applicant's attorney served a notice in terms of s 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Act), informing the Minister of an intended delictual claim for R3,600,000 based on alleged negligence by the police. The statutory six-month period for giving notice expired on 29 March 2017. After the Minister raised a special plea of non-compliance, the applicant filed a first condonation application in October 2021, which was later withdrawn in September 2022. A second condonation application was filed on 22 April 2024, approximately eight years after the incident.
The application for condonation for the late service of the notice in terms of section 3(4)(b) of Act 40 of 2002 was dismissed with costs on a party and party scale, including advocate fees on Scale B from 12 April 2024 onwards.
To establish 'good cause' under s 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, an applicant must provide a comprehensive and satisfactory explanation covering the entire period of the delay in sending the notice; unexplained gaps will undermine the application. The explanation for the delay must be assessed alongside the prospects of success of the underlying claim, and weak merits may negate a finding of good cause. Furthermore, the delay in launching the condonation application itself, while not strictly part of the good cause enquiry, is a relevant factor the court may consider in its overall discretion using a 'fair mind' approach.
The court observed that regarding the adequacy of the notice under s 3(2)(b), while aspects appeared lacking, it was unnecessary to decide this issue given the finding on condonation. The court further noted that the applicant's failure to disclose when he first became aware of his potential claim appeared intentional given the likely consequences of such an admission. On costs, the Minister did not insist on Scale C but was content with Scale B.
This case reinforces the principles applicable to applications for condonation under s 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. It confirms that applicants must provide a detailed, gap-free explanation covering the entire period of delay in serving the required notice. It also clarifies that while the delay in filing the condonation application may not be strictly part of the 'good cause' requirement, it remains a relevant factor in the court's overall discretionary assessment. The judgment illustrates how poor prospects of success in the underlying delictual claim can negate any leniency for procedural non-compliance, particularly where the claimant's own criminal conduct forms part of the context in which the alleged police negligence occurred.