T.H.Q obo A.J v Member of the Executive Council for the Department of Health, Eastern Cape (1295/2012) [2017] ZAECMHC 39 (10 October 2017)

T.H.Q obo A.J v Member of the Executive Council for the Department of Health, Eastern Cape (1295/2012) [2017] ZAECMHC 39 (10 October 2017)

The court held that the plaintiff's cause of action arose on 29 March 2012, when she became aware of the alleged negligence through an expert medical opinion. The statutory notice was issued within six months of this date, satisfying the requirements of section 3(2)(a) of the Institution of Legal Proceedings against certain Organs of State Act. The defendant did not plead or prove any prejudice resulting from service of the notice on the defendant rather than the Head of Department, nor did it raise this issue as a special plea. The court distinguished the cases relied upon by the defendant, finding that they did not apply to the facts at hand. Accordingly, the special plea was dismissed.

Citation
[2017] ZAECMHC 39
Parties
Plaintiff: T.H.Q obo A.J; Defendant: Member of the Executive Council for the Department of Health, Eastern Cape
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
10 October 2017
Case Number
1295/2012
Procedural Posture
Civil Trial / Special Plea
Outcome
Special plea dismissed with costs.
Judges
MN Hinana
Legal Topics
Institution of Legal Proceedings Against Organs of State, Prescription, Service of Statutory Notice
Civil Procedure Institution of Legal Proceedings Against Organs of State Prescription Service of Statutory Notice

Case Brief

Summary, issues, holding and outcome

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Parties

T.H.Q obo A.J

Plaintiff

Member of the Executive Council for the Department of Health, Eastern Cape

Defendant

Procedural Posture

Civil Trial / Special Plea

Legal Issues

  1. 1 Whether the plaintiff complied with the Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002, by serving notice within six months of becoming aware of the cause of action.
  2. 2 Whether service of the statutory notice on the defendant, rather than the Head of Department, was proper.
  3. 3 Whether the defendant suffered any prejudice due to alleged improper service.

Ratio Decidendi

The court held that the plaintiff's cause of action arose on 29 March 2012, when she became aware of the alleged negligence through an expert medical opinion. The statutory notice was issued within six months of this date, satisfying the requirements of section 3(2)(a) of the Institution of Legal Proceedings against certain Organs of State Act. The defendant did not plead or prove any prejudice resulting from service of the notice on the defendant rather than the Head of Department, nor did it raise this issue as a special plea. The court distinguished the cases relied upon by the defendant, finding that they did not apply to the facts at hand. Accordingly, the special plea was dismissed.

Court Disposition

Special plea dismissed with costs.

Orders

  • The special plea is dismissed with costs.