Moroeroe obo T.T.M v Member of the Executive Council for Health, Free State Province (6218/2018) [2021] ZAFSHC 361 (21 July 2021)

Moroeroe obo T.T.M v Member of the Executive Council for Health, Free State Province (6218/2018) [2021] ZAFSHC 361 (21 July 2021)

The court found that the applicant did not serve a section 3 notice in respect of her personal claim, as the notice dated 8 August 2017 only referred to the minor child's claim. The applicant failed to provide any explanation for the three-year delay in bringing the condonation application after the respondent's special plea. The absence of notice and substantiation of the personal claim meant the respondent could not properly meet the case. The court held that it would be impermissible to read into the notice a claim not mentioned therein or to craft a claim on the applicant's behalf. Accordingly, condonation for the applicant's personal claim was refused, while condonation for the minor...

Citation
[2021] ZAFSHC 361
Parties
Applicant: Nthabiseng Moroeroe obo T[....] T[....] M[....]; Respondent: Member of the Executive Council for Health, Free State Province
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 July 2021
Case Number
6218/2018
Procedural Posture
Condonation Application / Application for Condonation and Declaratory Relief Prior to Trial
Outcome
Condonation for late service of the section 3 notice is granted for the minor child's claim; the application for declaratory relief and condonation in respect of the applicant's personal claim is dismissed.
Judges
Naidoo
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Condonation for Late Notice, Personal Injury, Medical Negligence
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Act Condonation for Late Notice Personal Injury Medical Negligence

Case Brief

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Parties

Nthabiseng Moroeroe obo T[....] T[....] M[....]

Applicant

Member of the Executive Council for Health, Free State Province

Respondent

Procedural Posture

Condonation Application / Application for Condonation and Declaratory Relief Prior to Trial

Legal Issues

  1. 1 Whether the applicant complied with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 in respect of her personal claim.
  2. 2 Whether the failure to comply with section 3 should be condoned for the applicant's personal claim.
  3. 3 Whether condonation should be granted for the late service of the section 3 notice in respect of the minor child's claim.

Ratio Decidendi

The court found that the applicant did not serve a section 3 notice in respect of her personal claim, as the notice dated 8 August 2017 only referred to the minor child's claim. The applicant failed to provide any explanation for the three-year delay in bringing the condonation application after the respondent's special plea. The absence of notice and substantiation of the personal claim meant the respondent could not properly meet the case. The court held that it would be impermissible to read into the notice a claim not mentioned therein or to craft a claim on the applicant's behalf. Accordingly, condonation for the applicant's personal claim was refused, while condonation for the minor...

Court Disposition

Condonation for late service of the section 3 notice is granted for the minor child's claim; the application for declaratory relief and condonation in respect of the applicant's personal claim is dismissed.

Orders

  • The late service by the applicant of the notice of her intention to institute legal proceedings in terms of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, on behalf of the minor child T[....] T[....] Moroeroe, is condoned.
  • The application by the applicant, in respect of her claim in her personal capacity, for an order declaring that she has complied with the provisions of the Legal Proceedings Against Certain Organs of State Act 40 of 2002, alternatively condonation for late service of the notice in terms of the said Act, is dismissed.