N.M obo A and Others v Member of the Executive Council, Department of Health, Mpumalanga Province (2038/2017; 2617/2017; 2040/2017) [2020] ZAMPMBHC 15 (11 September 2020)

N.M obo A and Others v Member of the Executive Council, Department of Health, Mpumalanga Province (2038/2017; 2617/2017; 2040/2017) [2020] ZAMPMBHC 15 (11 September 2020)

The court found that the applicants, mothers of severely disabled children with limited education, only became aware of the potential negligence and the identity of the debtor when they consulted their attorney in May and July 2017. The statutory notices were dispatched within six months of acquiring such knowledge, satisfying the requirements of section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act. The respondent's conflation of 'debt due' and 'cause of action arose' was rejected, and the standardized affidavits did not undermine the applicants' credibility. The procedural defect of serving notice on the MEC instead of the Head of Health was...

Citation
[2020] ZAMPMBHC 15
Parties
Applicant: N M; Applicant: T N; Applicant: L M; Respondent: Member of the Executive Council, Department of Health, Mpumalanga Province
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
11 September 2020
Case Number
2038/2017; 2617/2017; 2040/2017
Procedural Posture
Civil Application / Application for Declaratory Relief and Condonation
Outcome
Applications granted; special pleas dismissed; statutory notices declared compliant; condonation granted for procedural defect.
Judges
Kgoele
Legal Topics
Institution of Legal Proceedings Act, Medical Negligence, Statutory Notice Requirements, Condonation, Prescription, Compliance With Procedural Requirements
Civil Procedure Delict Institution of Legal Proceedings Act Medical Negligence Statutory Notice Requirements Condonation Prescription Compliance With Procedural Requirements

Case Brief

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Parties

N M

Applicant

T N

Applicant

L M

Applicant

Member of the Executive Council, Department of Health, Mpumalanga Province

Respondent

Procedural Posture

Civil Application / Application for Declaratory Relief and Condonation

Legal Issues

  1. 1 Whether the applicants complied with section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.
  2. 2 Whether condonation should be granted for failure to serve statutory notice on the correct functionary.
  3. 3 Whether the statutory notices were served within the prescribed time frames.

Ratio Decidendi

The court found that the applicants, mothers of severely disabled children with limited education, only became aware of the potential negligence and the identity of the debtor when they consulted their attorney in May and July 2017. The statutory notices were dispatched within six months of acquiring such knowledge, satisfying the requirements of section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act. The respondent's conflation of 'debt due' and 'cause of action arose' was rejected, and the standardized affidavits did not undermine the applicants' credibility. The procedural defect of serving notice on the MEC instead of the Head of Health was...

Court Disposition

Applications granted; special pleas dismissed; statutory notices declared compliant; condonation granted for procedural defect.

Orders

  • Condonation is granted to the applicants for failure to serve notices on the Head of Health in terms of section 4(1)(a) of the Act.
  • The special plea raised by the respondent is dismissed.