T M v Member of the Executive Council Department of Health Free State Province (5789/2018) [2019] ZAFSHC 255 (28 November 2019)

T M v Member of the Executive Council Department of Health Free State Province (5789/2018) [2019] ZAFSHC 255 (28 November 2019)

The court found that the applicant failed to provide a full and acceptable explanation for the 14-month delay in consulting an attorney and the subsequent delay in serving the statutory notice. The explanation offered was vague, lacking specific dates, names, and details, and did not enable the court to assess the applicant's bona fides or the true cause of the delay. The applicant also failed to lodge the condonation application promptly after being notified of non-compliance. Furthermore, the applicant did not establish reasonable prospects of success on the merits, as the hospital records contradicted his version and indicated that his condition was due to his HIV status rather than...

Citation
[2019] ZAFSHC 255
Parties
Applicant: T M; Respondent: Member of the Executive Council Department of Health Free State Province
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 November 2019
Case Number
5789/2018
Procedural Posture
Urgent Application / Application for Condonation Under Section 3(4) of Act 40 of 2002
Outcome
Application for condonation in terms of section 3(4) of Act 40 of 2002 is dismissed with costs.
Judges
Murray
Legal Topics
Institution of Legal Proceedings Against Organs of State, Condonation, Prescription, Medical Negligence, Notice Requirements
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Condonation Prescription Medical Negligence Notice Requirements

Case Brief

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Parties

T M

Applicant

Member of the Executive Council Department of Health Free State Province

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the applicant provided a full and acceptable explanation for the delay in serving notice as required by section 3(2)(a) of Act 40 of 2002.
  2. 2 Whether good cause exists for the applicant's failure to comply with the statutory notice period.
  3. 3 Whether the respondent suffered unreasonable prejudice due to the delay in serving notice.

Ratio Decidendi

The court found that the applicant failed to provide a full and acceptable explanation for the 14-month delay in consulting an attorney and the subsequent delay in serving the statutory notice. The explanation offered was vague, lacking specific dates, names, and details, and did not enable the court to assess the applicant's bona fides or the true cause of the delay. The applicant also failed to lodge the condonation application promptly after being notified of non-compliance. Furthermore, the applicant did not establish reasonable prospects of success on the merits, as the hospital records contradicted his version and indicated that his condition was due to his HIV status rather than...

Court Disposition

Application for condonation in terms of section 3(4) of Act 40 of 2002 is dismissed with costs.

Orders

  • The application for condonation in terms of section 3(4) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 is dismissed with costs.