Tshitshi obo Tshitshi v Member of the Executive Council for Health, Province of the Eastern Cape (142/15) [2017] ZAECMHC 36 (13 September 2017)

Tshitshi obo Tshitshi v Member of the Executive Council for Health, Province of the Eastern Cape (142/15) [2017] ZAECMHC 36 (13 September 2017)

The court determined that the issue of condonation for non-compliance with section 3(2) of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 arises in the context of action proceedings, not application proceedings. The reference to an 'application' for condonation in the particulars...

Source-derived case information.

Citation
[2017] ZAECMHC 36
Parties
Plaintiff: Nomviwo Tshitshi obo Masonwabe Tshitshi; Defendant: Member of the Executive Council for Health, Province of the Eastern Cape
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
13 September 2017
Case Number
142/15
Procedural Posture
Civil Action / Pre Trial Directive
Outcome
Directive issued: The matter is to be set down on the trial roll, with the issue of condonation for non-compliance with section 3(2) of the Act to be determined first.
Judges
S M Mbenenge
Legal Topics
Condonation, Institution of Legal Proceedings Against Organs of State Act, Notice Requirements, Special Plea, Case Flow Management
Civil Procedure Condonation Institution of Legal Proceedings Against Organs of State Act Notice Requirements Special Plea Case Flow Management

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Parties

Nomviwo Tshitshi obo Masonwabe Tshitshi

Plaintiff

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

Defendant

Procedural Posture

Civil Action / Pre Trial Directive

Legal Issues

  1. 1 Whether the plaintiff's failure to comply with section 3(2) of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 should be condoned.
  2. 2 Whether the dispute regarding compliance with notice provisions should be determined by the motion court or the trial court.
  3. 3 Whether the proceedings are properly characterized as action proceedings despite reference to an 'application' for condonation.

Ratio Decidendi

The court determined that the issue of condonation for non-compliance with section 3(2) of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 arises in the context of action proceedings, not application proceedings. The reference to an 'application' for condonation in the particulars of claim does not change the character of the proceedings. The dispute regarding compliance with the notice provisions is a preliminary issue that can be determined separately from the merits and quantum. The matter should be set down on the trial roll, and the issue of condonation must be determined first, with viva voce evidence to be led unless the parties agree to a stated...

Court Disposition

Directive issued: The matter is to be set down on the trial roll, with the issue of condonation for non-compliance with section 3(2) of the Act to be determined first.

Orders

  • Upon certification as trial ready, the issue of condonation for non-compliance with section 3(2) of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 shall be determined first.
  • Viva voce evidence shall be led at the hearing unless the parties agree on a stated case for adjudication under rule 33(1) of the Uniform Rules of Court.