N.Z obo S.Z v Member of the Executive Council Department of Health and Social Development of the Mpumalanga Provincial Government (1572/2017) [2020] ZAMPMBHC 19 (12 October 2020)

N.Z obo S.Z v Member of the Executive Council Department of Health and Social Development of the Mpumalanga Provincial Government (1572/2017) [2020] ZAMPMBHC 19 (12 October 2020)

The court found that the applicant and her attorney failed to exercise reasonable care and diligence in pursuing the claim and obtaining the necessary hospital records. The obligation to serve the section 3 notice arose when the applicant first consulted her attorney and gave instructions to investigate the claim, which was at least by 30 October 2013. The delay in serving the notice was inordinately long and inadequately explained, and the applicant failed to establish good cause for the delay. Furthermore, the expert reports submitted by the applicant did not demonstrate negligence or causation on the part of the hospital staff, and the prospects of success in the underlying medical...

Citation
[2020] ZAMPMBHC 19
Parties
Applicant: N.Z obo S.Z; Respondent: Member of the Executive Council Department of Health and Social Development of the Mpumalanga Provincial Government
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
12 October 2020
Case Number
1572/2017
Procedural Posture
Urgent Application / Application for Condonation and Declaration of Timeous Delivery of Section 3 Notice Under the Institution of Legal Proceedings Against Organs of State Act
Outcome
Application for declaration of timeous delivery of section 3 notice dismissed; condonation application for late filing of notice dismissed; no order as to costs.
Judges
Kgoele
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Medical Negligence, Prescription, Condonation, Cerebral Palsy Claim, Good Cause Requirement
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Act Medical Negligence Prescription Condonation Cerebral Palsy Claim Good Cause Requirement

Case Brief

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Parties

N.Z obo S.Z

Applicant

Member of the Executive Council Department of Health and Social Development of the Mpumalanga Provincial Government

Respondent

Procedural Posture

Urgent Application / Application for Condonation and Declaration of Timeous Delivery of Section 3 Notice Under the Institution of Legal Proceedings Against Organs of State Act

Legal Issues

  1. 1 Whether the section 3 notice under the Institution of Legal Proceedings Against Organs of State Act was delivered within the prescribed time period.
  2. 2 Whether the late delivery of the section 3 notice should be condoned.
  3. 3 Whether the applicant and her attorney exercised reasonable care in obtaining the facts giving rise to the claim.

Ratio Decidendi

The court found that the applicant and her attorney failed to exercise reasonable care and diligence in pursuing the claim and obtaining the necessary hospital records. The obligation to serve the section 3 notice arose when the applicant first consulted her attorney and gave instructions to investigate the claim, which was at least by 30 October 2013. The delay in serving the notice was inordinately long and inadequately explained, and the applicant failed to establish good cause for the delay. Furthermore, the expert reports submitted by the applicant did not demonstrate negligence or causation on the part of the hospital staff, and the prospects of success in the underlying medical...

Court Disposition

Application for declaration of timeous delivery of section 3 notice dismissed; condonation application for late filing of notice dismissed; no order as to costs.

Orders

  • The application to declare that the notice attached to the applicant’s founding affidavit as Annexure 'MNZ1' has been delivered on time in terms of Section 3 of the Institution of Legal Proceedings Against Certain Organs Act 40 of 2000 is dismissed.
  • The condonation application for the late filing of the said notice is also dismissed.