Malgas and Another v Minister of Justice and Correctional Services (73418/2016) [2024] ZAGPPHC 183 (23 February 2024)

Parties

Procedural Posture

Civil Trial / Special Plea Regarding Compliance With Statutory Notice Requirements

Legal Issues

1. 1 Whether the plaintiffs complied timeously with the statutory notice requirement under section 3 of Act 40 of 2002 before instituting proceedings against an organ of state.
2. 2 Whether the plaintiffs' failure to apply for condonation for late delivery of the notice precludes their claims.
3. 3 Whether the defendant is entitled to raise the special plea at this stage of proceedings.

Ratio Decidendi

The court found that all plaintiffs failed to comply with the statutory requirement under section 3 of Act 40 of 2002 to deliver written notice to the defendant within six months of the debt becoming due. The notices were sent late and no application for condonation was made prior to the trial date. The court held that compliance with section 3 is imperative and that failure to comply, without condonation, deprives the court of jurisdiction to entertain the claims. The case law cited by the plaintiffs was found to be irrelevant to the present issues. Accordingly, the special plea was upheld and the plaintiffs' claims were dismissed.

Court Disposition

Plaintiffs' claims dismissed for failure to comply with statutory notice requirements under section 3 of Act 40 of 2002.

Orders

• The plaintiffs' claim is dismissed on account of their failure to comply with the requirement of notice in terms of section 3 of Act 40 of 2002.
• Plaintiffs to pay costs of suit, including costs of two counsel.