N.M obo L.N.M v MEC For Health, Eastern Cape Provincial Government (315/2018) [2022] ZAECBHC 48 (26 July 2022)

N.M obo L.N.M v MEC For Health, Eastern Cape Provincial Government (315/2018) [2022] ZAECBHC 48 (26 July 2022)

The court found that the applicant only acquired knowledge of the facts giving rise to the claim and the identity of the debtor upon receipt of the medical specialist's report on 27 June 2017. The statutory notice was sent less than three months out of time, and the delay was attributable to the applicant's youth, rural circumstances, funding constraints, lack of medical and legal knowledge, and attorney oversight. The respondent failed to demonstrate any unreasonable prejudice resulting from the delay or from the notice being sent to the Department of Health rather than the Head of Department. The interests of justice, the minor status of the child, and the constitutional right of access...

Citation
[2022] ZAECBHC 48
Parties
Applicant: N.M obo L.N.M; Respondent: MEC For Health, Eastern Cape Provincial Government
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
26 July 2022
Case Number
315/2018
Procedural Posture
Condonation Application / Application for Condonation of Non Compliance With Statutory Notice Requirements Prior to Institution of Proceedings
Outcome
Condonation granted for the applicant's non-compliance with sections 3(1) and 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002; leave granted to file supplementary affidavit; costs made costs in the cause of the main action.
Judges
Laing
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Condonation, Medical Negligence, Prescription, Notice Requirements
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Act Condonation Medical Negligence Prescription Notice Requirements

Case Brief

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Parties

N.M obo L.N.M

Applicant

MEC For Health, Eastern Cape Provincial Government

Respondent

Procedural Posture

Condonation Application / Application for Condonation of Non Compliance With Statutory Notice Requirements Prior to Institution of Proceedings

Legal Issues

  1. 1 Whether the applicant's non-compliance with sections 3(1) and 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 should be condoned.
  2. 2 When the debt became due for purposes of statutory notice and prescription.
  3. 3 Whether good cause exists for the failure to give timeous notice and whether the respondent was unreasonably prejudiced by the delay.

Ratio Decidendi

The court found that the applicant only acquired knowledge of the facts giving rise to the claim and the identity of the debtor upon receipt of the medical specialist's report on 27 June 2017. The statutory notice was sent less than three months out of time, and the delay was attributable to the applicant's youth, rural circumstances, funding constraints, lack of medical and legal knowledge, and attorney oversight. The respondent failed to demonstrate any unreasonable prejudice resulting from the delay or from the notice being sent to the Department of Health rather than the Head of Department. The interests of justice, the minor status of the child, and the constitutional right of access...

Court Disposition

Condonation granted for the applicant's non-compliance with sections 3(1) and 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002; leave granted to file supplementary affidavit; costs made costs in the cause of the main action.

Orders

  • The applicant is given leave to file her supplementary affidavit dated 7 June 2021.
  • The applicant's non-compliance with sections 3(1) and 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 is condoned.