Dauth and others v Minister of Safety and Security and Others (729/2007) [2008] ZANCHC 26; 2009 (1) SA 189 (NC) (23 May 2008)

Dauth and others v Minister of Safety and Security and Others (729/2007) [2008] ZANCHC 26; 2009 (1) SA 189 (NC) (23 May 2008)

The court held that section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002, while peremptory in wording, is not strictly peremptory because section 3(4) allows for condonation of non-compliance. The issuing of a summons prior to condonation does not render the proceedings void; once condonation is granted, the proceedings are validated from inception. The court distinguished the present case from authorities dealing with statutory requirements that do not allow for condonation, finding that the applicants' claims were not extinguished by prescription as the summons interrupted prescription. The applicants demonstrated good cause for their...

Citation
[2008] ZANCHC 26
Parties
Applicant: Catharina Dauth; Applicant: Helena Doganisa Hendrika Dauth; Applicant: Macdolene Olyne; Applicant: Pamela Elvonia Nero; Applicant: Charlotte Rentioa Olyne; Applicant: Edwin Brendan Olyne; Respondent: Minister of Safety and Security; Respondent: Collin Lock; Respondent: Christo Brian Fortune
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
23 May 2008
Case Number
729/2007
Procedural Posture
Condonation Application / Application for Condonation for Failure to Comply With Statutory Notice Requirements Prior to Institution of Damages Claim.
Outcome
Condonation granted for failure to comply with statutory notice; applicants granted leave to pursue claims; no order as to costs.
Judges
Lacock
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Condonation, Prescription, Negligence, Loss of Support
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Act Condonation Prescription Negligence Loss of Support

Case Brief

Summary, issues, holding and outcome

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Parties

Catharina Dauth

Applicant

Helena Doganisa Hendrika Dauth

Applicant

Macdolene Olyne

Applicant

Pamela Elvonia Nero

Applicant

Charlotte Rentioa Olyne

Applicant

Edwin Brendan Olyne

Applicant

Minister of Safety and Security

Respondent

Collin Lock

Respondent

Christo Brian Fortune

Respondent

Procedural Posture

Condonation Application / Application for Condonation for Failure to Comply With Statutory Notice Requirements Prior to Institution of Damages Claim.

Legal Issues

  1. 1 Whether the applicants' failure to comply with section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002, may be condoned.
  2. 2 Whether the claims have been extinguished by prescription due to the late application for condonation.
  3. 3 Whether the issuing of summons prior to condonation interrupts prescription under the Prescription Act, 68 of 1969.

Ratio Decidendi

The court held that section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002, while peremptory in wording, is not strictly peremptory because section 3(4) allows for condonation of non-compliance. The issuing of a summons prior to condonation does not render the proceedings void; once condonation is granted, the proceedings are validated from inception. The court distinguished the present case from authorities dealing with statutory requirements that do not allow for condonation, finding that the applicants' claims were not extinguished by prescription as the summons interrupted prescription. The applicants demonstrated good cause for their...

Court Disposition

Condonation granted for failure to comply with statutory notice; applicants granted leave to pursue claims; no order as to costs.

Orders

  • Condonation is granted for the applicants' failure to comply with section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002.
  • Leave is granted to the applicants to pursue their claims against the respondents on the pleadings already served and filed under case number 788/2004.