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Bailey and Others v Botshelo Water Board and Another (2554/2009)  ZANWHC 59 (22 September 2011)
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NORTH WEST HIGH COURT, MAFIKENG
CASE NO. 2554/2009
In the matter between:
MALCOLM DESMOND BAILEY ….......................................1ST APPICANT
SIMON MONNAPULA GABORONE ….................................2ND APPICANT
GIFT MPATLISANG LOBELO …..........................................3RD APPICANT
SAMUEL OTLA MANGANYI ….............................................4TH APPICANT
GWENDOLINE MOSETSANA MOTHIBA ….........................5TH APPICANT
JOSEPH MOSIAPITSO KOTLHAI …....................................6TH APPICANT
RAYMUNDO LAURELES …..................................................7TH APPICANT
BOTSHELO WATER BOARD …....................................1ST RESPONDENT
MINISTER OF WATER AFFAIRS
& ENVIRONMENTAL AFFAIRS …..................................2nd RESPONDENT
 The factual background of this application (which was aptly set out by first respondent’s counsel in his heads of argument) is as follows:
The applicants issued summons against the first and second respondents for payment of damages in the sum of R21 million. The first respondent raised a special plea, alleging that the applicants had not complied with the provisions of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, No.40 of 2002 (“the Act”). The applicants thereafter excepted to the first respondent’s special plea. The exception was set down on 18 March 2010, before Khoza AJ, who in an ex tempore judgment dismissed the applicants’ exception. The applicants thereafter waited for a period of at least 11 and a half months before bringing an application for a declaratory order and alternative relief.
 On 3 March 2011 the applicants brought an application before this Court in which they sought the following order: -
“1. Declaring that the words “in terms of the Constitution” contained in paragraph (c) of the definition of ‘Organ of State’ contained in the Act meant that both the identity of the functionary or institution and the power or function which he, she or it exercises, must be identified in the Constitution itself in order to fall within the ambit of paragraph (c) of the definition of ‘Organ of State’ contained in the Act.
2. Declaring that the applicants were not required to serve Notice in terms of the Act on the first respondent.
2.1 Alternatively to Prayers 1 and 2, condoning the failure of the applicants to serve notice in terms of section 3(1) read with section 3(2) of the Act and directing that the pleadings already filed in this matter shall be deemed to have been filed subsequent to a notice in compliance with section 3(1) read with section 3(2) of the Act.
That such party who opposes this application shall be liable for the costs thereof.”
 The first respondent filed a notice of intention to oppose and subsequently during April 2011 filed an answering affidavit setting out the basis for its opposition, amongst others which also raised a special plea of res judicata.
 The applicants in their heads of argument have now elected to abandon the main relief set out in prayers 1 and 2 of the Notice of Motion and only seek to pursue the alternative relief to the aforementioned prayer and prayer 3 of the Notice of Motion.
 On 11 August 2011 after argument, the court issued the following order:
Condonation is granted in line with par. 2.1 of the Notice of Motion;
Judgment is reserved in respect of costs.
Here then are the reasons (for judgment).
 The issues are whether the applicants are entitled to condonation and who should bear the costs of the application.
 In Minister of Safety and Security v De Witt  ZASCA 103; 2009 (1) SA 457 (SCA) the court delineated the following guidelines in respect of an application for condonation in terms of section 3(4).
“Where no notice at all is given by the creditor and the Organ of State relies on the failure to give notice, the creditor can nonetheless apply for condonation.
See: Paragraph  at 462
The Court may condone the failure to give notice even after the summons in the action has been served.
See: Paragraph  at 462
The discretion of the Court to condone the failure to give notice may only be exercised if the following three criteria are met:
The debt has not been extinguished by prescription;
Good cause exists for the creditor’s failure; and
The Organ of State has not been unduly prejudiced.
See: Paragraph  at 462”
 The applicants failed to issue a notice in terms of section 3(1) of the Act because their attorney advised them that it was not necessary to do so. In giving the said advice, the attorney was relying on the decision of L. Lever AJ, in this Division, in the case of Nicor IT Consulting (Pty) Ltd and North West Housing Corporation, case No.2538/07. It is not clear when this judgment was handed down but it preceded the date of the alleged advice. It was held in Nicor case that the North West Housing Corporation is not an organ of State.
 In another matter (Malcolm Desmond Bailey & Others v Botshelo Water Board & Another, Case No.2554/09) in this Division one of the issues was whether Botshelo Water Board was an organ of State. Khoza AJ ruled that it was.
 I am satisfied that the applicants have made out a good case for condonation. The attorney relied on an existing decision of this Division. At that time, the Khoza AJ judgment had not yet been delivered.
 The award of costs is, unless expressly provided, a matter within the discretion of the court (Ferreira v Levin N.O. and Others: Vryenhoek and Others v Powell N.O. and Others  ZACC 27; 1996 (2) SA 621 (CC)). The general rule is that costs follow the event.
 The applicants’ main application was for a declaratory order, the effect of which would undermine Khoza AJ’s judgment. Effectively, the order sought is almost similar to the findings of L. Lever AJ. Why the applicants would have sought an order in those terms is to me still a mistery. It was, so to speak, an attempt to bypass the appeal route against the judgment of Khoza AJ. This to me was an exercise in futility which is tantamount to embarking on abortive proceedings. It is trite law that a litigant who is responsible for abortive proceedings will generally be saddled with an order of costs (R Bakers (Pty) Ltd v Rutto Bakeries (Pty) Ltd 1948 (2) SA 626 (T) at 631).
 The first respondent had to engage two counsels (a senior and a junior) for the complex matters which are involved in the main prayer. The first respondent filed its answering affidavit with the Registrar on 01 April 2011 and on 7 April 2011 the applicants’ replying affidavit was filed. In their reply, the applicants persisted with their main prayer. It was only on 7 July, in the heads of argument, that they abandoned it. It took them almost three months to realise that this claim was doomed for failure. In my view, the applicants have to bear the costs in respect of the main prayer, such costs will include the engagement of two counsels.
COSTS ON CONDONATION
 It was stated earlier that the applicants waited for more than eleven months before bringing the application for condonation. There was no explanation why the matter was brought to court after such a lengthy period. The application was launched on 4 March 2010. Although the first respondent raised concern about the absence of any explanation by the applicants about the delay, it was only on 11 August 2011, during argument in court, that an affidavit was handed in purporting to explain the reason for the delay. It was only after the perusal of that affidavit that the first respondent’s counsel conceded condonation.
 This court is not impressed by the dilatoriness and tardiness of the applicants; a conduct which, in my view, calls for censor. Consequently, although the applicants are successful in regard to condonation, they will have to bear the first respondent’s costs. The following order is therefore issued:
The applicants are ordered to pay costs on the scale as between party and party, jointly and severally; such costs to include the costs of two counsels.
The applicants are ordered to pay costs on the scale as between party and party, jointly and severally.
JUDGE OF THE HIGH COURT
DATE OF HEARING: 11 AUGUST 2011
DATE OF JUDGMENT: 22 SEPTEMBER 2011
COUNSEL FOR APPLICANTS: ADV M. G. HITGE
COUNSEL FOR 1ST RESPONDENT: ADV R. A. SOLOMON SC
ATTORNEYS FOR APPLICANTS: SMIT STANTON INC.
ATTORNEYS FOR 1ST RESPONDENT: KGOMO MOKHETLE & TLOU ATTORNEYS
ATTORNEYS FOR 2ND RESPONDENT: THE STATE ATTORNEY