Shange v MEC for Education, Kwazulu-Natal (15860/2008) [2011] ZAKZDHC 28; 2012 (2) SA 519 (KZD) (17 June 2011)

Shange v MEC for Education, Kwazulu-Natal (15860/2008) [2011] ZAKZDHC 28; 2012 (2) SA 519 (KZD) (17 June 2011)

The court held that the applicant's claim had not prescribed because, as a minor at the time of the incident, prescription was delayed until one year after attaining majority. The reduction of the age of majority under the Children's Act did not retrospectively deprive the applicant of his accrued right to institute proceedings. The failure to give notice to the respondent was due to the applicant's attorney's oversight and should not be held against the applicant. The respondent was not unreasonably prejudiced by the delay, as the relevant witnesses remained available and the facts were not stale. The applicant demonstrated good cause for the failure to comply with the notice...

Citation
[2011] ZAKZDHC 28
Parties
Applicant: Simphiwe Shange; Respondent: MEC for Education, Kwazulu-Natal
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
17 June 2011
Case Number
15860/2008
Procedural Posture
Condonation Application / Application for Condonation for Non Compliance With Statutory Notice Requirements Prior to Trial
Outcome
Application for condonation granted with costs.
Judges
P Govindasamy
Legal Topics
Institution of Legal Proceedings Against Organs of State, Prescription and Minority, Children's Rights, Condonation, Constitutional Right of Access to Courts
Civil Procedure Delict Family and Children Institution of Legal Proceedings Against Organs of State Prescription and Minority Children's Rights Condonation Constitutional Right of Access to Courts

Case Brief

Summary, issues, holding and outcome

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Parties

Simphiwe Shange

Applicant

MEC for Education, Kwazulu-Natal

Respondent

Procedural Posture

Condonation Application / Application for Condonation for Non Compliance With Statutory Notice Requirements Prior to Trial

Legal Issues

  1. 1 Whether the applicant's claim has prescribed under the Institution of Legal Proceedings against certain Organs of State Act and the Prescription Act.
  2. 2 Whether good cause exists for the applicant's failure to give proper notice to the respondent.
  3. 3 Whether the respondent was unreasonably prejudiced by the failure to give notice.

Ratio Decidendi

The court held that the applicant's claim had not prescribed because, as a minor at the time of the incident, prescription was delayed until one year after attaining majority. The reduction of the age of majority under the Children's Act did not retrospectively deprive the applicant of his accrued right to institute proceedings. The failure to give notice to the respondent was due to the applicant's attorney's oversight and should not be held against the applicant. The respondent was not unreasonably prejudiced by the delay, as the relevant witnesses remained available and the facts were not stale. The applicant demonstrated good cause for the failure to comply with the notice...

Court Disposition

Application for condonation granted with costs.

Orders

  • The applicant is granted condonation for non-compliance with section 3(2)(a) of the Institution of Legal Proceedings against certain Organs of State Act.
  • The respondent is ordered to pay the costs of the application.