Van Staden v Member of the Executive Committee for Health, Gauteng Province (21381/2016) [2017] ZAGPPHC 755 (6 October 2017)

Van Staden v Member of the Executive Committee for Health, Gauteng Province (21381/2016) [2017] ZAGPPHC 755 (6 October 2017)

The court found that although the applicant failed to provide a full and reasonable explanation for the entire period of delay in serving notice, there were strong prospects of success in the underlying claim for medical negligence. The applicant was uneducated and only became aware of his claim after consulting attorneys and obtaining hospital records. The prejudice to the applicant if condonation were refused would far outweigh any prejudice to the respondent, who did not lay a sufficient basis for unreasonable prejudice. The interests of justice and fairness required that condonation be granted, compensating for the inadequate explanation with strong prospects of success. The...

Citation
[2017] ZAGPPHC 755
Parties
Applicant: Hendric Clement Van Staden; Respondent: Member of the Executive Committee for Health, Gauteng Province
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 October 2017
Case Number
21381/2016
Procedural Posture
Condonation Application / Application for Condonation of Non Compliance With Statutory Notice Requirements Prior to Institution of Action
Outcome
Condonation granted for non-compliance with section 3 of the Institution of Legal Proceedings against Organs of State Act; applicant granted leave to proceed with action; applicant ordered to pay costs of the condonation application.
Judges
M J Teffo
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Condonation, Medical Negligence, Prescription, Notice Requirements
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Act Condonation Medical Negligence Prescription Notice Requirements

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Parties

Hendric Clement Van Staden

Applicant

Member of the Executive Committee for Health, Gauteng Province

Respondent

Procedural Posture

Condonation Application / Application for Condonation of Non Compliance With Statutory Notice Requirements Prior to Institution of Action

Legal Issues

  1. 1 Whether the applicant has made out a proper case for condonation of non-compliance with section 3 of the Institution of Legal Proceedings against Organs of State Act.
  2. 2 Whether the applicant's delay in serving notice was reasonable and covered by good cause.
  3. 3 Whether the respondent was unreasonably prejudiced by the delay in notice.

Ratio Decidendi

The court found that although the applicant failed to provide a full and reasonable explanation for the entire period of delay in serving notice, there were strong prospects of success in the underlying claim for medical negligence. The applicant was uneducated and only became aware of his claim after consulting attorneys and obtaining hospital records. The prejudice to the applicant if condonation were refused would far outweigh any prejudice to the respondent, who did not lay a sufficient basis for unreasonable prejudice. The interests of justice and fairness required that condonation be granted, compensating for the inadequate explanation with strong prospects of success. The...

Court Disposition

Condonation granted for non-compliance with section 3 of the Institution of Legal Proceedings against Organs of State Act; applicant granted leave to proceed with action; applicant ordered to pay costs of the condonation application.

Orders

  • The applicant's non-compliance with section 3 of the Institution of Legal Proceedings against Organs of State Act 40 of 2002 is condoned in terms of section 3(4).
  • The applicant is granted leave to proceed with the prosecution of the action against the respondent.