Msindwana v Kili and Others (439/98) [2011] ZAECMHC 6 (6 May 2011)

Msindwana v Kili and Others (439/98) [2011] ZAECMHC 6 (6 May 2011)

The court found that the plaintiff failed to comply with statutory requirements by not instituting proceedings within twelve months of the cause of action and by failing to give written notice to the defendants as required by law. No application for condonation was made, nor were reasons provided for the delay or failure to notify. The legislative prescripts and rules of court are imperative and not optional. In the absence of compliance or any explanation, the court could not condone the plaintiff's failure. The special plea was therefore upheld, and the plaintiff's claim was dismissed with costs.

Citation
[2011] ZAECMHC 6
Parties
Plaintiff: Nonkululeko Judith Msindwana; Defendant: Nontsasa Kili and 11 Others
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
6 May 2011
Case Number
439/98
Procedural Posture
Civil Trial / Special Plea on Prescription and Statutory Notice Requirements Heard Separately From Merits
Outcome
Special plea upheld; plaintiff's claim dismissed with costs.
Judges
GNZ Mjali
Legal Topics
Prescription of Claims, Statutory Notice Requirements, Condonation, Defamation
Civil Procedure Prescription of Claims Statutory Notice Requirements Condonation Defamation

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 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Nonkululeko Judith Msindwana

Plaintiff

Nontsasa Kili and 11 Others

Defendant

Procedural Posture

Civil Trial / Special Plea on Prescription and Statutory Notice Requirements Heard Separately From Merits

Legal Issues

  1. 1 Whether the plaintiff's claim for damages against the defendants is prescribed due to failure to institute proceedings within the statutory period.
  2. 2 Whether the plaintiff complied with statutory notice requirements before instituting action against an organ of state.
  3. 3 Whether condonation for late institution and failure to give notice should be granted.

Ratio Decidendi

The court found that the plaintiff failed to comply with statutory requirements by not instituting proceedings within twelve months of the cause of action and by failing to give written notice to the defendants as required by law. No application for condonation was made, nor were reasons provided for the delay or failure to notify. The legislative prescripts and rules of court are imperative and not optional. In the absence of compliance or any explanation, the court could not condone the plaintiff's failure. The special plea was therefore upheld, and the plaintiff's claim was dismissed with costs.

Court Disposition

Special plea upheld; plaintiff's claim dismissed with costs.

Orders

  • The special plea is granted.
  • The plaintiff is to pay costs.