Miya v Member of the Executive Council for Health: Free State Province (3203/2023) [2025] ZAFSHC 74 (14 March 2025)

Parties

Procedural Posture

Condonation Application / Application for Condonation for Late Notice Under S3(4)(a) of Act 40 of 2002

Legal Issues

1. 1 Whether the applicant's claim has prescribed under the Prescription Act.
2. 2 Whether good cause exists for the applicant's failure to serve notice within the statutory period.
3. 3 Whether the respondent was unreasonably prejudiced by the late notice.

Ratio Decidendi

The court found that the applicant only became aware of the facts giving rise to her claim on 25 June 2020, when informed of the retained swab and subsequent surgery. The claim was not prescribed, as prescription runs from the date of knowledge of the facts, not the date of the operation. The applicant provided a reasonable explanation for the delay, including reliance on complaints to hospital authorities and legal representatives. The respondent failed to demonstrate unreasonable prejudice, as it was able to file its plea and reply, and the medical records were available. The court exercised its discretion in favour of the applicant, finding that the interests of justice required that...

Court Disposition

Condonation granted for the applicant's late notice under section 3(1)(a) of Act 40 of 2002.

Orders

• Condonation is granted for the applicant’s failure to serve the notice contemplated in section 3(1)(a) of the Institution of Legal Proceedings against Certain Organs of State, Act 40 of 2022 within the period laid down in section 3(2) of the Act.
• No order as to costs; each party to pay its own costs.