G K obo M K v Member of the Executive Council for the Department of Health (2795/2015) [2019] ZAFSHC 70 (6 June 2019)

G K obo M K v Member of the Executive Council for the Department of Health (2795/2015) [2019] ZAFSHC 70 (6 June 2019)

The court found that the applicant's claim in her personal capacity had prescribed under section 11 of the Prescription Act, as she failed to exercise reasonable care to acquire knowledge of the debtor and the facts, and her inaction led to the late institution of proceedings. Condonation for late notice in respect of this claim could not be granted, as the debt was extinguished and the Act does not revive prescribed debts. In respect of the claim in her representative capacity as mother and guardian of M, a minor, prescription had not run due to section 13(1) of the Prescription Act. The applicant provided a satisfactory explanation for the delay, given her background and lack of legal...

Citation
[2019] ZAFSHC 70
Parties
Applicant: G K obo M K; Respondent: Member of the Executive Council for the Department of Health
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 June 2019
Case Number
2795/2015
Procedural Posture
Urgent Application / Application for Condonation for Late Notice Under S3 of the Institution of Legal Proceedings Against Certain Organs of State Act
Outcome
Condonation for late service of notice granted only in relation to the claim in applicant's representative capacity as mother and guardian of M; condonation refused for the claim in applicant's personal capacity.
Judges
Meintjes, AJ
Legal Topics
Prescription Act, Institution of Legal Proceedings Against Organs of State, Condonation, Minor Claims, Late Notice
Civil Procedure Prescription Act Institution of Legal Proceedings Against Organs of State Condonation Minor Claims Late Notice

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Parties

G K obo M K

Applicant

Member of the Executive Council for the Department of Health

Respondent

Procedural Posture

Urgent Application / Application for Condonation for Late Notice Under S3 of the Institution of Legal Proceedings Against Certain Organs of State Act

Legal Issues

  1. 1 Whether the applicant's claim in her personal capacity has prescribed under the Prescription Act.
  2. 2 Whether condonation should be granted for late service of notice in terms of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act.
  3. 3 Whether the claim in the applicant's representative capacity as mother and guardian of a minor has prescribed.

Ratio Decidendi

The court found that the applicant's claim in her personal capacity had prescribed under section 11 of the Prescription Act, as she failed to exercise reasonable care to acquire knowledge of the debtor and the facts, and her inaction led to the late institution of proceedings. Condonation for late notice in respect of this claim could not be granted, as the debt was extinguished and the Act does not revive prescribed debts. In respect of the claim in her representative capacity as mother and guardian of M, a minor, prescription had not run due to section 13(1) of the Prescription Act. The applicant provided a satisfactory explanation for the delay, given her background and lack of legal...

Court Disposition

Condonation for late service of notice granted only in relation to the claim in applicant's representative capacity as mother and guardian of M; condonation refused for the claim in applicant's personal capacity.

Orders

  • Condonation for late service of notice in terms of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, 40/2002, is granted only in relation to the claim in applicant's representative capacity as mother and natural guardian of M.
  • Condonation for late service of notice in relation to the claim in applicant's personal capacity is refused.