NM obo NM v MEC for Health, Eastern Cape (1748/2017) [2019] ZAECMHC 44 (27 August 2019)

Parties

Procedural Posture

Civil Trial / Special Plea on Condonation for Non Compliance With Statutory Notice Requirements

Legal Issues

1. 1 Whether the plaintiff's condonation application for non-compliance with section 3(1) and 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 included condonation for non-compliance with section 4(1).
2. 2 Whether the defendant's special plea regarding improper service of notice on the head of department remains a live issue after the condonation order.
3. 3 Whether the defendant's conduct in repeatedly raising technical points unjustifiably impedes the plaintiff's constitutional right of access to court.

Ratio Decidendi

The court found that the plaintiff's condonation application addressed both the failure to serve notice within the prescribed six months and the failure to serve notice on the correct functionary, namely the head of department, as required by section 4(1) of the Act. The defendant did not oppose the condonation application or raise the issue of section 4(1) non-compliance at the time, and subsequently prepared for trial, indicating that no points in limine remained. The court held that the condonation order must be interpreted as including condonation for non-compliance with section 4(1), especially since the relevant facts were pleaded and the defendant suffered no prejudice. The...

Court Disposition

The defendant's special plea dated 16 August 2019 is dismissed with costs.

Orders

• The defendant's special plea dated 16 August 2019 is dismissed with costs.