Erasmus and Others v National Director of Public Prosecutions (43676/2016) [2021] ZAGPPHC 672 (11 October 2021)

Erasmus and Others v National Director of Public Prosecutions (43676/2016) [2021] ZAGPPHC 672 (11 October 2021)

The court found that although the applicants delayed giving notice for over three years, the claim for malicious prosecution had not prescribed, as the summons was served within the three-year period following the termination of criminal proceedings. The applicants, as laypersons, were unaware of the statutory notice requirement and only learned of it upon consulting attorneys shortly before prescription. While the explanation for the delay was incomplete, the court accepted that lack of legal knowledge and financial constraints contributed. The prospects of success in the main action were found to be reasonably strong, as there was no direct evidence implicating the first applicant in...

Citation
[2021] ZAGPPHC 672
Parties
Applicant: Erasmus, DJ; Applicant: Erasmus, K; Applicant: Erasmus, D; Respondent: National Director of Public Prosecutions
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 October 2021
Case Number
43676/2016
Procedural Posture
Condonation Application / Opposed Application for Condonation for Late Notice Under Institution of Legal Proceedings Against Certain Organs of State Act
Outcome
Condonation for the late filing of the notice of intention to institute legal proceedings is granted.
Judges
Réan Strydom
Legal Topics
Condonation, Institution of Legal Proceedings Against Organs of State Act, Prescription, Malicious Prosecution
Civil Procedure Condonation Institution of Legal Proceedings Against Organs of State Act Prescription Malicious Prosecution

Case Brief

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Parties

Erasmus, DJ

Applicant

Erasmus, K

Applicant

Erasmus, D

Applicant

National Director of Public Prosecutions

Respondent

Procedural Posture

Condonation Application / Opposed Application for Condonation for Late Notice Under Institution of Legal Proceedings Against Certain Organs of State Act

Legal Issues

  1. 1 Whether the applicants' failure to give timeous notice under the Institution of Legal Proceedings Against Certain Organs of State Act should be condoned.
  2. 2 Whether the applicants' claim has been extinguished by prescription.
  3. 3 Whether good cause exists for the late filing of the notice.

Ratio Decidendi

The court found that although the applicants delayed giving notice for over three years, the claim for malicious prosecution had not prescribed, as the summons was served within the three-year period following the termination of criminal proceedings. The applicants, as laypersons, were unaware of the statutory notice requirement and only learned of it upon consulting attorneys shortly before prescription. While the explanation for the delay was incomplete, the court accepted that lack of legal knowledge and financial constraints contributed. The prospects of success in the main action were found to be reasonably strong, as there was no direct evidence implicating the first applicant in...

Court Disposition

Condonation for the late filing of the notice of intention to institute legal proceedings is granted.

Orders

  • The applicants' late filing of the notice of intention to institute legal proceedings to the respondent is condoned in terms of section 3(4) and 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.
  • Costs of this application to be in the cause.