Mhlongo v Commissioner for SARS and Others (26246/2013) [2015] ZAGPPHC 735 (21 September 2015)

Mhlongo v Commissioner for SARS and Others (26246/2013) [2015] ZAGPPHC 735 (21 September 2015)

The court held that the requirements for condonation under section 3(4)(b) of the Institution of Legal Proceedings against Certain Organs of State Act are conjunctive: the debt must not be extinguished by prescription, good cause must exist for the failure to serve notice, and the organ of state must not be unreasonably prejudiced. The applicant's claim for malicious prosecution (Claim A) had not prescribed, and she provided a bona fide explanation for her delay, demonstrating prospects of success and lack of unreasonable prejudice to the respondents. Therefore, condonation was granted for Claim A. However, the claim for defamation (Claim B) was found to have prescribed, as the applicant...

Citation
[2015] ZAGPPHC 735
Parties
Applicant: Charlotte Connie Mhlongo; Respondent: Commissioner for SARS; Respondent: Andrew Seshoka; Respondent: Fhulufhelo Mutavhatsindi
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 September 2015
Case Number
26246/2013
Procedural Posture
Condonation Application / Application for Condonation for Late Notice Under Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act
Outcome
Condonation granted for late notice in respect of malicious prosecution claim; condonation denied for defamation claim due to prescription; costs to be determined in the main action.
Judges
K.L.A.M Manamela
Legal Topics
Condonation, Malicious Prosecution, Defamation, Prescription, Institution of Legal Proceedings Against Organs of State
Civil Procedure Delict Condonation Malicious Prosecution Defamation Prescription Institution of Legal Proceedings Against Organs of State

Case Brief

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Parties

Charlotte Connie Mhlongo

Applicant

Commissioner for SARS

Respondent

Andrew Seshoka

Respondent

Fhulufhelo Mutavhatsindi

Respondent

Procedural Posture

Condonation Application / Application for Condonation for Late Notice Under Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act

Legal Issues

  1. 1 Whether condonation should be granted for the applicant's late service of notice under section 3 of the Institution of Legal Proceedings against Certain Organs of State Act for claims of malicious prosecution and defamation.
  2. 2 Whether the claim for defamation has been extinguished by prescription.
  3. 3 Whether the applicant has shown good cause for the delay in serving the notice.

Ratio Decidendi

The court held that the requirements for condonation under section 3(4)(b) of the Institution of Legal Proceedings against Certain Organs of State Act are conjunctive: the debt must not be extinguished by prescription, good cause must exist for the failure to serve notice, and the organ of state must not be unreasonably prejudiced. The applicant's claim for malicious prosecution (Claim A) had not prescribed, and she provided a bona fide explanation for her delay, demonstrating prospects of success and lack of unreasonable prejudice to the respondents. Therefore, condonation was granted for Claim A. However, the claim for defamation (Claim B) was found to have prescribed, as the applicant...

Court Disposition

Condonation granted for late notice in respect of malicious prosecution claim; condonation denied for defamation claim due to prescription; costs to be determined in the main action.

Orders

  • Condonation is granted for the applicant's late compliance with sections 3(1) and (2) of the Act for the claim of malicious prosecution.
  • Condonation is denied for the applicant's late compliance with sections 3(1) and (2) of the Act for the claim of defamation, as the claim is extinguished by prescription.