L.M.M obo R.L.M v Member of the Executive Council for Health of the Free State Province (3159/2021) [2023] ZAFSHC 208 (30 May 2023)

L.M.M obo R.L.M v Member of the Executive Council for Health of the Free State Province (3159/2021) [2023] ZAFSHC 208 (30 May 2023)

The court found that the second notice dispatched by the applicant to the respondent met the requirements of section 3(2)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The notice briefly set out the facts giving rise to the debt and the particulars known to the applicant at the time. The respondent did not object to the second notice upon receipt and only raised the issue in its plea, after investigating the merits of the case. The court adopted a substantive approach, focusing on whether the legislative purpose was achieved, rather than strict formal compliance. The respondent's failure to raise a special plea or object to the second notice at...

Citation
[2023] ZAFSHC 208
Parties
Applicant: L.M.M obo R.L.M; Respondent: Member of the Executive Council for Health of the Free State Province
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 May 2023
Case Number
3159/2021
Procedural Posture
Civil Application / Judgment on Application for Confirmation of Compliance or Condonation Under S3 of Act 40 of 2002
Outcome
Application granted. The applicant's notice of intention to institute legal proceedings is confirmed as compliant with section 3 of the Act.
Judges
Mhlambi
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Notice Requirements, Medical Negligence, Substantial Compliance, Condonation, Prescription
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Act Notice Requirements Medical Negligence Substantial Compliance Condonation Prescription

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

L.M.M obo R.L.M

Applicant

Member of the Executive Council for Health of the Free State Province

Respondent

Procedural Posture

Civil Application / Judgment on Application for Confirmation of Compliance or Condonation Under S3 of Act 40 of 2002

Legal Issues

  1. 1 Whether the applicant's notice of intended legal proceedings to the organ of state complied with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.
  2. 2 Whether condonation should be granted for late service of the notice if it did not comply.
  3. 3 Whether the second notice contained sufficient facts and particulars as required by the Act.

Ratio Decidendi

The court found that the second notice dispatched by the applicant to the respondent met the requirements of section 3(2)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The notice briefly set out the facts giving rise to the debt and the particulars known to the applicant at the time. The respondent did not object to the second notice upon receipt and only raised the issue in its plea, after investigating the merits of the case. The court adopted a substantive approach, focusing on whether the legislative purpose was achieved, rather than strict formal compliance. The respondent's failure to raise a special plea or object to the second notice at...

Court Disposition

Application granted. The applicant's notice of intention to institute legal proceedings is confirmed as compliant with section 3 of the Act.

Orders

  • The applicant’s notice of her intention to institute legal proceedings in terms of section 3 of the Legal Proceedings Against Certain Organs of State, Act 40 of 2002 is confirmed.
  • Costs will be costs in the cause.