THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 293/09

Minister of Agriculture and Land Affairs
Appellant

and

C J Rance (Pty) Limited
Respondent

Neutral citation:
Minister of Agriculture and Land Affairs v C J Rance (Pty)
Limited (293/09) [2010] ZASCA 27 (25 March
2010)

Coram:
Navsa, Lewis JJA, Hurt, Griesel et Majiedt AJJA

Heard:
2 March 2010

Delivered:
25 March 2010

Summary:
Condonation in terms of section 3(4)(b) of the Institution of
Legal Proceedings Against Certain Organs of State Act 40 of
2002 – rationale for notice period discussed – factors to be
considered for condonation – statutory requirements not
met.

ORDER

On appeal from: North Gauteng High Court, Pretoria (Tlhapi AJ sitting as
court of first instance):

The appeal is upheld with costs, including the costs of two counsel.
The order of the court below is set aside and substituted with the
following:
'1
The application for condonation in terms of paragraphs 2 and 3 of the
Notice of Motion is dismissed with costs, including the costs of two counsel.
The respondent's application to strike out the replying affidavit, with the
exclusion of paragraphs 26, 27, 28, 45 and 84 is granted with costs, including the
costs of two counsel.'

JUDGMENT

MAJIEDT AJA (Navsa, Lewis JJA, Hurt et Griesel AJJA concurring)

[1] The respondent company, CJ Rance (Pty) Ltd (the company), gave notice
to the appellant, the Minister of Agriculture and Land Affairs (the Minister), of
intended legal proceedings. The notice was delivered after the six month period
prescribed by s 3(2)(a) of the Institution of Legal Proceedings against certain
Organs of State Act  40 of 2002 (the Act).

[2] The present appeal against that decision is before us with the leave of the
court below. The appeal turns on the application of the provisions of the Act, the
material parts of which will be dealt with in due course.

[3] The company conducts a sawmilling business and relies on the Kubusi
plantation for the supply of pine logs. The company averred that on 1 September
2003 a fire destroyed a standing crop of trees on the Kubusi plantation, depriving
its sawmills of its source of supply and that it consequently sustained a loss of
profits. It alleged that the fire originated on 31 August 2003, on land owned
and/or controlled by the Minister. In seeking to hold the Minister liable, the
company relied, inter alia, on the provisions of s 2 of the National Veld and
Forest Fire Act 101 of 1998 (the FFA).

[4] The provisions of the FFA impose a number of obligations on owners to
prevent fires originating from or spreading from their land. ‘Owner’ is defined in s
2 of the FFA as including, in relation to the State, the Minister, the Government
department, or the member of the executive council of the provincial
administration exercising control over State land or a person authorised by any
one of the aforegoing.

[5] Section 34 of the FFA assists the company, in that it creates a statutory
presumption of negligence. It provides that in civil proceedings, where a plaintiff
proves that he or she suffered loss from a veldfire, which the defendant caused
or which started or spread from land owned by the defendant, the latter is
presumed to have been negligent in relation to the veldfire until the contrary is
proved. In its particulars of claim the company specifically relies on this
presumption.

[6] Almost two and a half years passed before the company served notice on
the Minister of its intention to institute proceedings against the latter. Notice was
served on 16 February 2006. Summons was served on 29 August 2006 (shortly
before the expiry of the applicable three year prescription period). This prompted
the filing of a special plea by the Minister, in terms of which the Minister asserted
that the company’s failure to give notice within the prescribed period was fatal to
its claim, and the Minister sought an order that the claim be dismissed with costs.
In consequence the company launched the condonation application and sought,
in the alternative, a declarator that its letter of 16 February 2006 constituted

compliance with s 3(1) and (2) of the Act, and further alternatively, that its
summons and particulars of claim served on the respondent on 29 August 2006
were valid in terms of s 3(1) of the Act.

[7] The applicant's primary contention in support of its application for
condonation was to the effect that, despite its best efforts, it was not able to
ascertain prior to February 2006, first, the identity of the owner and then of the
relevant organ of State which controlled it. In this regard it placed reliance on s
3(3)(a) of the Act.
[8] The court below was ‘satisfied’ that there was good cause for the delay. It
held that the company had ‘failed to show that it was prejudiced by the delay’.
The court below granted condonation. It did not rule on the declaratory order. At
this stage, it is necessary to consider the applicable statutory provisions.

[9] The applicable provisions of s 3 of the Act read as follows:
'3
Notice of intended legal proceedings to be given to organ of State
(1)
No legal proceedings for the recovery of a debt may be instituted against an organ of
State unless-
(a)
the creditor has given the organ of State in question notice in writing of his or her or its
intention to institute the legal proceedings in question; or
(b)
the organ of State in question has consented in writing to the institution of that legal
proceedings-
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the requirements set out in
subsection (2).
(2)
A notice must-
(a)
within six months from the date on which the debt became due, be served on the organ
of State in accordance with section 4 (1); and
(b)
……..
(3)
For purposes of subsection (2) (a) –
(a)
a debt may not be regarded as being due until the creditor has knowledge of the identity
of the organ of State and of the facts giving rise to the debt, but 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, unless the organ of State wilfully prevented
him or her or it from acquiring such knowledge; and
(b)
a debt referred to in section 2 (2) (a), must be regarded as having become due on the
fixed date.

(4) (a) If an organ of State relies on a creditor's failure to serve a notice in terms of subsection
(2) (a), the creditor may apply to a court having jurisdiction for condonation of such failure.
(b)
The court may grant an application referred to in paragraph (a) if it is satisfied that-
(i)
the debt has not been extinguished by prescription;
(ii)
good cause exists for the failure by the creditor and
(iii)
the organ of State was not unreasonably prejudiced by the failure.
(c)
. . . .’

[10] It is not in issue that the envisaged claim for damages is a claim for the
recovery of ‘a debt’ as defined in s 1 of the Act and that the respondent
represents the Department of Land Affairs, an organ of State.

[11] As can be seen, s 3(4)(b) circumscribes a court’s power by requiring that it
be satisfied that: (i) the debt has not been extinguished by prescription; (ii) good
cause exists for the failure by the creditor, ie to serve the statutory notice
according to s 3(2)(a) or to serve a notice that complies with the prescripts of s
3(2)(b); and (iii) the organ of State was not unreasonably prejudiced by the
failure.1 These requirements are conjunctive and must be established by the
applicant for condonation.

[12] The first requirement, namely that the debt has not been extinguished by
prescription, does not arise. I intend to deal mainly with the condonation granted
by the court below, purportedly in terms of s 3(4)(b) of the Act and to consider
whether the court below could rightly be satisfied that the statutory requirements
had been met. That is the decision appealed against. I intend to do so mainly on
the basis of the company’s version of events.

[13] In considering whether condonation was rightly granted it is instructive to
bear in mind why notices of the kind contemplated in s 3 of the Act have been
insisted on by the legislature. Statutory requirements of notice have long been
familiar features of South Africa’s legal landscape. The conventional explanation
for demanding prior notification of intention to sue organs of State, is that, ‘with
its extensive activities and large staff which tends to shift it needs the opportunity

1 See also in this regard Madinda v Minister of Safety & Security 2008 (4) SA 312 (SCA);
[2008] ZASCA 34 para 6.

to investigate claims laid against it, to consider them responsibly and to decide,
before getting embroiled in litigation at public expense, whether it ought to
accept, reject or endeavour to settle them’.2 From time to time there have been
judicial pronouncements about how such provisions restrict the rights of its
potential litigants. However, their legitimacy and constitutionality is not in issue.3

[14] In Mohlomi the following is Stated:4
‘Rules that limit the time during which litigation may be launched are common in our legal system
as well as many others. Inordinate delays in litigating damage the interests of justice. They
protract the disputes over the rights and obligations sought to be enforced, prolonging the
uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate
satisfactorily on cases that have gone stale. By then witnesses may no longer be available to
testify. The memories of ones whose testimony can still be obtained may have faded and become
unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination
and those harmful consequences of it. They thus serve a purpose to which no exception in
principle can cogently be taken.’

[15] I turn to the facts of the present case. The statutory notification period of
six months afforded the applicant as a creditor by s 3(2)(a) of the Act, would, in
the normal course of events, if taken from the date that the fire destroyed the
Kubusi plantation, have expired at midnight on 1 March 2004.

[16] It is of some significance that the principal deponent in support of the
company’s case is its attorney, Du Plessis, who set out the steps taken over the
years to identify the owner and/or controller of the land on which the fire is
alleged to have originated. The description of events and the explanations for the
delay as provided by Mr du Plessis are set out in the paragraphs that follow.

[17] On 1 September 2003 when the fire raged through the Kubusi plantation
the company had no knowledge of the origins of the fire, save that it was evident
that the fire approached from the north-west. It was clear that the fire had its
origins several kilometres away. The company could trace no direct
eyewitnesses to the time and the origins of the fire.

2 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) para 9.
3 Mohlomi  para 9.
4 Para11

[18] The company turned to an internationally renowned expert in the field of
forestry related fire investigations who was based in South Africa, namely,
Dr Cornelis de Ronde, who commenced his investigations into the origins of the
fire on 10 September 2003. It is important to note that De Ronde was not
instructed to determine who was the owner and/or controller of the land on which
the fire originated. His brief was to identify the spot from which the fire originated.

[19] It took De Ronde approximately six months to finalise his report, which he
presented to the company on 7 April 2004. Du Plessis provided no reason for this
long delay, nor does he State that from the commencement of the investigation
he or the company urged De Ronde to be expeditious.

[20] It is necessary to record that the plantations that sustained fire damage
are collectively known as the Amathole pool of plantations and included the
Kubusi plantation. The commercial forestry enterprise on the Kubusi plantation is
conducted by the Amathole Forestry Company (Pty) Ltd (AFC), which also
acquired certain forestry enterprises, including the Amathole pool of plantations
from the South African Forestry Company Limited (SAFCOL). The company is a
subsidiary of AFC. Before November 2001 DWAF5 and SAFCOL, which is a
State owned enterprise, conducted all State forestry enterprises in the Amathole
pool of plantations.

[21] According to Du Plessis, De Ronde’s report provided in April 2004,
beyond the six month period contemplated in s 3(2) of the Act, indicated that the
fire that destroyed the Kubusi plantation originated on the southern slope of a hill
to the north of what was referred to as the Cata plantation. The following excerpt
from the report was quoted:
'. . . the fire started along a footpath winding down the mountain slope, at the (State ?)
property (according to report probably belonging to DWAF) above the Cata plantation.'
Unfortunately and inexplicably, De Ronde’s report was not supplied.

5  'DWAF' is a commonly used acronym for the Department of Water Affairs and Forestry.

[22] Du Plessis Stated that De Ronde’s report was the first indication of the
origins of the fire. The land on which the fire originated is described as neither
being fenced-off, nor accessible by formal road infrastructure. There are no
buildings, no road signs and no identifying nameplates.

[23] Du Plessis averred that Mr John Rance, the company’s director of
operations, has lived in the affected area for more than 50 years, speaks
isiXhosa, and is acquainted with the local inhabitants.  Rance, subsequent to De
Ronde’s report, apparently had no success in establishing from the local
inhabitants whether anyone had ever laid claim to the land on which it was
alleged the fire had originated. There is, however, a commercial forest situated to
the south of the land on which the fire originated which is known as the Cata
plantation. It is common cause that the area in question is hilly, uninhabited
terrain with very dense vegetation.

[24] According to  Du Plessis, enquiries by him and  Rance subsequent to  De
Ronde’s report, yielded a ‘guess’ that the land in question might be owned by the
State and that it was probably controlled by  DWAF. We know that De Ronde’s
report had already, in April 2004, indicated as a matter of probability that the land
in question was owned by the State and more particularly by DWAF. By all
accounts DWAF signage abounds in the neighbourhood in which the fire
originated and spread. According to Du Plessis his enquiries with DWAF in April
2004 in relation to land ownership ‘led to a dead end’.

[25] Du Plessis, ‘in order to establish with more certainty who owned and/or
controlled the land on which the fire originated’, subsequently consulted a
collection of State plantation and forest maps compiled by SAFCOL in
conjunction with DWAF.

[26] The SAFCOL map book identified the  land in question as 'Cata 12',
’Nyameni Cata’ and 'Nyameni'. Deeds office searches were done in Pretoria for
information relating to 'Cata 12', 'Nyameni Cata' and 'Nyameni', but yielded no
results. A second search later in the same Deeds Office revealed that this

particular land was unregistered State land. This later information was obtained
in January 2006. There is no indication about when this information was solicited.

[27] Du Plessis is also the attorney for SAFCOL and, because SAFCOL and
DWAF formerly controlled all State forests and plantations in the area, he thought
the former was ‘the most likely to have information pertaining to ownership and
control of land in and around plantations and forests’6 (my emphasis). He
consequently approached SAFCOL and discussed the matter with a general
manager, Mr Johan Raath, who offered to make enquiries. Towards the end of
January 2006, Raath informed Du Plessis that the land might well be under the
control of the Department of Land Affairs ('DLA').

[28] Armed with this information, a letter was addressed by Du Plessis on
behalf of the company on 16 February 2006 to the DLA, purportedly in
compliance with s 3(2)(b)(i) and (ii) of the Act.

[29] Subsequently Du Plessis entered into extensive correspondence with the
State Attorney acting on behalf of the DLA. Du Plessis’ efforts were directed at
obtaining an admission by the DLA that it owned and/or controlled the land on
which the fire allegedly originated. In April 2006 a site inspection was arranged
on that land. This site inspection was attended by representatives of both parties,
but yielded no tangible results (the accusations on both sides apportioning blame
to the other for this futile exercise take the matter no further and does not warrant
any further discussion).

[30] A further flurry of correspondence from Du Plessis to the DLA and the
State Attorney ensued, all of which remained unanswered. It was only after
summons was issued on 28 August 2006 that the State Attorney responded to
this correspondence.

6 Du Plessis’ law offices are located within the SAFCOL building.

[31] In her plea the Minister averred that the land in question is controlled by
the Amazizi Traditional Community. This took Du Plessis by surprise.
Investigations followed, including research into relevant legislation which led Du
Plessis to the Ciskei Administrative Authorities Act.7 This Act appeared to confirm
that the Cata 12 land was under the control of the Keiskammahoek North Tribal
Authority (for the Amazizi Tribe). Du Plessis averred that the obscurity and
ambiguity of this information itself constitute 'good cause' within the meaning
envisaged in s 3(4)b)(ii) of the Act.

[32] It is uncontested that the DLA controls approximately 17 million out of 25
million hectares of State owned land. A significant proportion of this land is
rugged and inaccessible. As a consequence administration is difficult. The
principal deponent on behalf of the Minister complained that the company’s
reluctance to share its own information and aerial photographs contributed to the
delay in identifying whether the DLA owned the land. The company supplied De
Ronde’s report to the DLA for the first time in February 2008.

[33] In terms of s 3(4)(b) a court may grant condonation if it ’is satisfied’ that
the three requirements set out therein have been met. In practical terms this
means the ‘overall impression’ made on a court by the facts set out by the
parties.8

[34] It was submitted on behalf of the company that it took all the necessary
steps within its power to identify the owner and/or controller of the land in
question. Counsel contended that such steps as had been taken by or on behalf
of the company were reasonable and constituted ‘good cause’ within the
meaning of that phrase in s 3(4)(b)(ii) of the Act. He submitted further that the
Minister’s uncooperative attitude and the inaction of the DLA’s bureaucrats were
what created prejudice for the Minister rather than the delay in serving the notice.
The Minister’s servants failed to signpost the land nominally owned by the
Minister and they were totally unresponsive to those affected by the fire. Whilst

7 37 of 1984, repealed by the Eastern Cape Traditional Leadership and Governance Act 4 of
2005.
8 See Madinda  para 9.

Du Plessis labelled the Minister and those representing her as being obstructive,
counsel representing the company was rightly constrained to concede that at its
worst for the Minister her bureaucrats were inept rather than wilfully obstructive.

[35] In general terms the interests of justice play an important role in
condonation applications.9 An applicant for condonation is required to set out
fully the explanation for the delay; the explanation must cover the entire period of
the delay and must be reasonable.10

[36] 'Good cause' within the meaning contained in s 3(4)(b)(ii) has not been
defined, but may include a number of factors which will vary from case to case on
differing facts. Schreiner JA in dealing with the meaning of ‘good cause’ in
relation to an application for rescission, described it thus in Silber v Ozen
Wholesalers (Pty) Ltd:11
'The meaning of "good cause" in the present sub-rule, like that of the practically synonymous
expression "sufficient cause" which was considered by this Court in Cairn's Executors v Gaarn
1912 AD 181, should not lightly be made the subject of further definition. For to do so may
inconveniently interfere with the application of the provision to cases not at present in
contemplation. There are many decisions in which the same or similar expressions have been
applied in the granting or refusal of different kinds of procedural relief. It is enough for present
purposes to say that the defendant must at least furnish an explanation of his default sufficiently
full to enable the court to understand how it really came about, and to assess his conduct and
motives'.12

[37] The prospects of success of the intended claim play a significant role –
'strong merits may mitigate fault; no merits may render mitigation pointless.'13
The court must be placed in a position to make an assessment on the merits in
order to balance that factor with the cause of the delay as explained by the
applicant. A paucity of detail on the merits will exacerbate matters for a creditor
who has failed to fully explain the cause of the delay. An applicant thus acts at
his own peril when a court is left in the dark on the merits of an intended action,

9 Van Wyk v Unitas Hospital & Another (Open Democratic Advice Centre as Amicus Curiae)
2008 (2) SA 472 (CC) para 20, and cases referred to there.
10 Van Wyk para 22.
11 1954 (2) SA 345 (A).
12 At 352H-353A.
13 Per Heher JA in Madinda para 12.

eg where an expert report central to the applicant's envisaged claim is omitted
from the condonation papers.

[38] Absence of unreasonable prejudice falls to be decided separately as a
specific requirement to be met by an applicant. Whereas good cause primarily
concerns the applicant's conduct and its motives, the absence of unreasonable
prejudice shifts the focus onto the State organ and the protection of its interests
by receiving timeous notice. The DLA serves as a good example in the present
case as to why this requirement must be met. It has a large staff component
dealing with many matters relating to the vast tracts of land it administers on
behalf of the State. It plainly requires adequate time to sift, analyse, prioritise and
decide on matters before entering into litigation.14

[39] Condonation must be applied for as soon as the party concerned realises
that it is required.15 The onus to satisfy the court that all the requirements under s
4(b) of the Act have been met, is on an applicant, although a court would be
hesitant 'to assume prejudice for which (a) respondent itself does not lay a
basis'.16

[40] As stated above, in deciding the present appeal, I will have regard
principally to the company’s version of events.  The company, as Du Plessis
correctly observes, 'had to search for its defendant' in the intended action for
damages arising from the devastation allegedly wreaked by the fire. While there
can hardly be any quarrel with the enlisting of De Ronde's services fairly soon
after the fire, the investigation into ascertaining the identity of the landowner had
a distinct lack of urgency about it.

[41] Counsel representing the company submitted that the lack of urgency can
best be explained on the basis that the company took the view that the three year
prescription period was the outer time limit within which it had to conduct and

14 Cf Mohlomi para 9.
15 Madinda para 14.
16 Madinda para 21.

finalise its investigations. In my view, it is that attitude that was the company’s
undoing.

[42] De Ronde's brief was most certainly not to ascertain the identity of the
debtor – his sole mission was to locate the origin of the fire because that is where
his expertise lay. The company failed to provide any explanation for the period of
inaction until De Ronde's report was received at the end of April 2004. Aerial
photographs which could easily be obtained and which it had in its possession
would have assisted at an early stage to identify the surrounding farms and
plantations, the ownership and/or control of which could have been investigated
at an earlier stage.

[43] As stated above, the approach to SAFCOL and in particular to Raath
appears to have been made for the first time in January 2006. On Du Plessis’
own version of events, SAFCOL because of its history and operations in the area
was the most likely profitable source of any investigation into ownership of
surrounding land. No reason suggests itself (and none was advanced before us)
why the company did not, during this period of more than six months while  De
Ronde was busy executing his specific mandate, approach SAFCOL or  Raath.
On Du Plessis’ own description of the steps he took to ascertain the identity of
the owner or controller of the land in question he left the most probable source of
information as his last, rather than first port of call.

[44] Rance only started his enquiries after De Ronde’s report was obtained.
With his local knowledge and ability in isiXhosa one would have expected a
prompt investigation rather than the delays referred to above.

[45] The State featured very strongly at a very early stage as the most likely
landowner. Even though the DWAF reared its head as the most likely contender
the only other likely State department, given the nature of the area, is that
headed by the Minister. A notice to one or both of these departments would have
placed the company in a much stronger position in arguing its entitlement to a
condonation order.

[46] I have alluded to the six month period of inaction while De Ronde was
doing his investigations. The applicant's inertia continued beyond this period and,
troublingly, to an even greater extent. After the first unsuccessful enquiry to the
Pretoria Deeds Office on 15 July 2004, nothing at all happened until 30 January
2006. This lengthy lull of some seventeen months is not explained at all by the
applicant.

[47] A 70-year lease agreement between AFC and the State was concluded on
1 April 2005.  In an attached schedule the leased property is described as, inter
alia, 'CATA plantation' and 'portion of the farm Nyameni' and the DLA was
reflected as the owner of the land. Apart from denying that the lease applied to
the land in question, Du Plessis complained in reply that the agreement is almost
two hundred pages long. But that misses the point. Du Plessis knew very well
what he was looking for – the identity of the landowner. The land in question lies
alongside the leased land and this would have been a strong indicator that the
DLA was the likely owner. Du Plessis did not have to peruse the entire document
(if this was too burdensome an exercise), since the relevant information was
contained in the schedule. Moreover, AFC as the owner of the Kubusi plantation
also had a pending claim for damages arising from the same fire and was being
represented by the same firm of attorneys as the applicant (viz Du Plessis' firm).
Du Plessis Stated that AFC's claim was being investigated simultaneously with
that of the applicant. There is no reason why the applicant could not, by
exercising the necessary diligence, have given notice shortly after 1 April 2005
when the information in the lease had become available.

[48] Du Plessis' affidavit lacks the necessary detail to qualify as a full and
detailed explanation for the delay in relation to which the company sought
condonation. A few examples suffice:
(i)
He avers that, at an early stage in the investigation, he had visited the
scene on more than one occasion. He does not provide any dates of these
visits.
(ii)
In the same vein, he does not say when exactly he and Rance made
numerous enquiries in the Stutterheim district and in the surrounding area.

(iii)
No dates are furnished in respect of Du Plessis' consultation of SAFCOL's
State forest and plantation maps.
(iv)    There is no explanation why De Ronde's investigations took more than six
months to complete.

[49] Counsel for the company submitted that its investigations were not
directed solely at identifying the owner of the land in question but that it stretched
beyond that to determine who controlled the land in question. It is clear from the
relevant provisions of the FFA that ownership ought to be a primary focal point.

[50] On the paucity of information supplied by it the company’s prospects of
success cannot be measured even on the most preliminary basis. This is
exacerbated by the problems attendant upon a claim for loss of profits based on
the destruction of the property of another. That is an issue on which I do not
intend to say anything further.

[51] For all the reasons set out above the company failed to establish good
cause for condonation in terms of s 3(4)(b)(ii). The court below did not properly
apply its mind to the factors set out above. For that reason alone condonation
ought not to have been granted.

[52] An applicant who seeks condonation in terms of the Act must show that
the relevant organ of State was not unreasonably prejudiced by its failure to give
timeous notice.17 The court a quo found that the respondent failed to show that it
was prejudiced by the delay. This is a material misdirection as the court below
reversed the onus.

[53] The respondent set out in some detail the unreasonable prejudice it had
allegedly suffered as a consequence of the delay. These relate primarily to its
inability to conduct its own investigations into the cause and origin of the fire. It
was common cause that, in the course of his investigation, De Ronde had
collated extensive information in respect of, inter alia, the prevailing weather

17 Section 3(4)(b)(iii) of the Act; Madinda para 21.

conditions at that time, the origin and direction of travel of the fire, satellite
imagery, aerial photographs and charts, temperature and humidity histograms,
wind speed and direction, fuel model maps and fire simulation runs. De Ronde's
report containing this information was, notwithstanding repeated requests by the
respondent, only made available to the respondent after the condonation
application had been launched. This information would quite obviously have been
of considerable use to the Minister’s own experts in conducting their
investigations. The company's response that this information was in the public
domain is not persuasive.

[54] The applicant alludes to the site inspection to support its submission in
relation to the absence of prejudice to the Minister. The site inspection arranged
by the company's representatives proved to be of no assistance. The land in
question was observed from a distant hilltop and no proper inspection was held.
As the respondent correctly points out, prompt investigation of fire claims are
critical. Changes in climate, vegetation and so forth can markedly prejudice any
investigation. The respondent would, as is contended on her behalf, in all
likelihood have engaged the services of her own fire expert to collate and
analyse data obtained. In the present matter it was expected of the respondent to
conduct such investigations some three years after the fire. The prejudice is self-
evident.

[55] The applicant succeeded in the court below in its condonation application.
The declarator sought in the alternative was therefore not necessary. As pointed
out above, it was the granting of the condonation order that was the subject of
the present appeal. However, the reasons propounded above in respect of the
good cause requirement hold good for the contention that the applicant's letter of
16 February 2006 constituted compliance with the relevant legislative
requirements. More particularly, it cannot be said, having regard to the provisions
of s 3(3)(a) that the company could not, by exercising reasonable care, have
acquired knowledge earlier of the identity of the relevant organ of State. As set
out above, Du Plessis could have obtained the relevant information if he had
acted sooner and more diligently. The contention that the six month period
started running only in January 2006, when the information as to DLA being the

probable landowner was gleaned from Raath, is without merit and can be
rejected without more.

[56] One aspect remains, namely the striking out order by the court below. The
parties were agreed that, whatever the outcome of the appeal, the said order
remains extant.

[57] For all the reasons set out above, the following order is made:

The appeal is upheld with costs, including the costs of two counsel.
The order of the court below is set aside and substituted with the
following:
'1
The application for condonation in terms of paragraphs 2 and 3 of the
Notice of Motion is dismissed with costs, including the costs of two counsel.

The respondent's application to strike out the replying affidavit, with the
exclusion of paragraphs 26, 27, 28, 45 and 84 is granted with costs, including the
costs of two counsel.'

__________________

S A MAJIEDT

ACTING JUDGE OF APPEAL

APPEARANCES:

For appellant:
E A S Ford SC

S Rugunanan

Instructed by:

State Attorney

Port Elizabeth and Bloemfontein

For respondent:
S C du Plessis SC

T van der Walt

Instructed by:

Morajane du Plessis Inc

Webbers Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:  The Registrar, Supreme Court of Appeal
Date: 25 MARCH 2010
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal

MINISTER OF AGRICULTURE AND LAND AFFAIRS v C J RANCE (PTY)
LTD

The Supreme Court of Appeal (SCA) today upheld an appeal by the Minister
of Agriculture and Land Affairs against a decision of the North Gauteng High
Court, Pretoria, allowing the respondent to institute action against the Minister
beyond the six month period prescribed in terms of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002.

The respondent instituted action after a fire originating on land allegedly
nominally owned and/or controlled by the Minister destroyed a standing crop
of trees, depriving the respondent, a sawmill company, of its source of supply
of fine logs. The respondent, C J Rance (Pty) Ltd, contended that as a result it
sustained a loss of profits.

In granting condonation, the high court found in favour of the company on the
basis that it had met the statutory requirements for condonation. Firstly, it
found that there had been good cause shown for the delay as the company
took all the necessary steps to identify the owner of the land and secondly,
that the state had failed to show that it was prejudiced by the delay.

The SCA held that an applicant for condonation is required to set out fully the
explanation for the delay which must cover the entire period of the delay. The
explanation must be reasonable. In the present case the affidavit of the chief
deponent in support of the company’s case lacked the necessary detail to
qualify as a full and detailed explanation for the delay. Furthermore, the SCA
held that the onus is on an applicant seeking condonation to show that the
state was not unreasonably prejudiced by its failure to give timeous notice.
The court a quo’s finding that the respondent failed to show prejudice by the
delay was a material misdirection as it reversed the onus.  Consequently the
appeal against the granting of condonation was upheld with costs.
---ends---