SCA dismisses businessman Roux Shabangu’s damages claim against public works dept

The Supreme Court of Appeal has upheld an appeal against a high court judgment which granted businessman Roux Shabangu’s company, Roux Property Fund, condonation for failure to give timeous notice of intention to bring proceedings against the Minister of Public Works, claiming damages of R350 million.

The SCA delivered the judgment this week.

“The action was based on the alleged repudiation by the Department of Public Works of the lease of a centre city building in Pretoria to serve the SAPS,” court documents read.

The lease was signed in 2010 with two addenda being included, extending the commencement of the lease and increasing the rental.

However, the department did not take occupation of the premises in April 2011 and refused to pay rental.

This resulted in Shabangu’s company defaulting on its obligation to Nedbank which held a mortgage over the property.

“Nedbank foreclosed on the mortgage and sued the respondent for the outstanding amount. As a result, the building was sold.”

Shabangu instituted action against the minister in August 2014, but did not give prior notice as required by Section 3 (1) of the legal proceedings against certain organs of state.

The Gauteng High Court granted him condonation, but also gave leave to the SCA.

In October 2014, the minister filed a special plea asking for the claim to be dismissed, and arguing that notice had not been given timeously and that there had been no application for condonation.

However, the SCA found that Shabangu had done nothing about this until he sought condonation in an application that commenced in 2017.

The court said the department was prejudiced by this failure. It was also not satisfied with Shabangu’s evidence that there was a good cause for the failure to give notice timeously as required.

The court said that, by October 2014 when the special plea was filed, Shabangu had been aware that the minister relied upon non-compliance with the provisions of Section 3 of the Act.

“One would have expected [Shabangu’s company] to bring an application for condonation immediately,” it said, adding it instead delayed for over three years.

“The respondent does not explain why over three years elapsed before it could bring the condonation application and what efforts it took to expedite the claim.”

According to the judgment, the minister had also pointed out that the officials who were involved in the negotiation and conclusion of the lease agreement were no longer in the department’s employ.

The minister also argued that, if the application was granted, the department would be prejudiced in conducting the trial without its key witnesses who have since been dismissed.

“Long delays in litigation are not in the interest of justice as memories of witnesses may fade, documents may get lost and changes in administration may result in a high turnover of senior staff.

“Accordingly, the respondent has failed to satisfy the court that the applicant has not been unreasonably prejudiced by the failure to serve the notice timeously,” the court ruled.

The appeal was upheld with costs and the company’s action was dismissed.

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