Mtshotshise and Another v Minister of Defence and Military Veterans (61707/2020) [2022] ZAGPPHC 424 (13 June 2022)

Mtshotshise and Another v Minister of Defence and Military Veterans (61707/2020) [2022] ZAGPPHC 424 (13 June 2022)

The court found that the applicants provided a full and satisfactory explanation for the delay in serving notice, primarily due to difficulties in contacting previous attorneys and retrieving their file. The exhaustion of internal remedies, including favourable findings by the Military Judge and the Ombudsman, interrupted prescription. The respondent’s claims of prejudice and fraud were not substantiated and could be addressed at trial. The applicants demonstrated reasonable prospects of success, and the interests of justice favoured granting condonation. Accordingly, the court condoned the late notice and granted leave to proceed with the legal proceedings.

Citation
[2022] ZAGPPHC 424
Parties
Applicant: M. Mtshotshise; Applicant: Xolani Madlingozi; Respondent: Minister of Defence and Military Veterans
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 June 2022
Case Number
61707/2020
Procedural Posture
Condonation Application / Application for Condonation of Late Notice Under Institution of Legal Proceedings Against Certain Organs of State Act
Outcome
Application for condonation granted; applicants permitted to proceed with their claim.
Judges
Baqwa
Legal Topics
Condonation, Institution of Legal Proceedings Act, Prescription, Internal Remedies Exhaustion
Civil Procedure Administrative Law Condonation Institution of Legal Proceedings Act Prescription Internal Remedies Exhaustion

Case Brief

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Parties

M. Mtshotshise

Applicant

Xolani Madlingozi

Applicant

Minister of Defence and Military Veterans

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the applicants' late service of notice to institute legal proceedings against the respondent should be condoned under section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act.
  2. 2 Whether the applicants' claims have prescribed.
  3. 3 Whether the respondent is unreasonably prejudiced by the late notice.

Ratio Decidendi

The court found that the applicants provided a full and satisfactory explanation for the delay in serving notice, primarily due to difficulties in contacting previous attorneys and retrieving their file. The exhaustion of internal remedies, including favourable findings by the Military Judge and the Ombudsman, interrupted prescription. The respondent’s claims of prejudice and fraud were not substantiated and could be addressed at trial. The applicants demonstrated reasonable prospects of success, and the interests of justice favoured granting condonation. Accordingly, the court condoned the late notice and granted leave to proceed with the legal proceedings.

Court Disposition

Application for condonation granted; applicants permitted to proceed with their claim.

Orders

  • The applicants' non-compliance with section 3(1)(a) and section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act is condoned.
  • The applicants are granted condonation in terms of section 3(4) of the Act.