S.N obo I.N v MEC for the Department of Health (170/2021) [2024] ZAECBHC 22 (3 September 2024)

S.N obo I.N v MEC for the Department of Health (170/2021) [2024] ZAECBHC 22 (3 September 2024)

The court found that the applicant failed to provide a full and candid explanation for the delay in bringing the condonation application for her personal claim, particularly by omitting her prior engagement with attorneys in 2018 and failing to explain the delay of nearly one and a half years after the special plea was served. The applicant's lack of sophistication and disadvantaged background were considered but did not excuse the lack of frankness and delay. However, the minor child was found to be an innocent party, unable to act independently, and the court, as upper guardian, was persuaded that condonation should be granted for the minor child's claim. The minor child's claim had...

Citation
[2024] ZAECBHC 22
Parties
Plaintiff: S[...] N[...] obo I[...] N[...]; Defendant: MEC for the Department of Health
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
3 September 2024
Case Number
170/2021
Procedural Posture
Civil Application / Application for Condonation Under Section 3(4) of Act 40 of 2002
Outcome
Condonation for non-compliance with section 3(2) of Act 40 of 2002 is refused for the applicant's personal claim and granted for the minor child's claim.
Judges
B.B. Brody
Legal Topics
Condonation, Institution of Legal Proceedings Against Organs of State Act, Medical Negligence, Prescription, Prospects of Success
Civil Procedure Delict Condonation Institution of Legal Proceedings Against Organs of State Act Medical Negligence Prescription Prospects of Success

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Parties

S[...] N[...] obo I[...] N[...]

Plaintiff

MEC for the Department of Health

Defendant

Procedural Posture

Civil Application / Application for Condonation Under Section 3(4) of Act 40 of 2002

Legal Issues

  1. 1 Whether the applicant's non-compliance with section 3(2) notice requirements under Act 40 of 2002 should be condoned for her personal claim and for the minor child.
  2. 2 Whether the delay in bringing the condonation application is adequately explained.
  3. 3 Whether the minor child's claim is prejudiced by the delay or prescription.

Ratio Decidendi

The court found that the applicant failed to provide a full and candid explanation for the delay in bringing the condonation application for her personal claim, particularly by omitting her prior engagement with attorneys in 2018 and failing to explain the delay of nearly one and a half years after the special plea was served. The applicant's lack of sophistication and disadvantaged background were considered but did not excuse the lack of frankness and delay. However, the minor child was found to be an innocent party, unable to act independently, and the court, as upper guardian, was persuaded that condonation should be granted for the minor child's claim. The minor child's claim had...

Court Disposition

Condonation for non-compliance with section 3(2) of Act 40 of 2002 is refused for the applicant's personal claim and granted for the minor child's claim.

Orders

  • The applicant’s non-compliance with section 3(2) of Act 40 of 2002 is not condoned in respect of the applicant’s personal claim.
  • The applicant’s non-compliance with section 3(2) of the Act in respect of the minor child, I[...] N[...], is hereby condoned in terms of section 3(4) of the Act.