Witbooi v Member of the Executive Council for Health: North West Province (M551/2021) [2022] ZANWHC 49 (21 July 2022)

Witbooi v Member of the Executive Council for Health: North West Province (M551/2021) [2022] ZANWHC 49 (21 July 2022)

The court found that the applicant only became aware of the material facts giving rise to her claim in January 2021 after obtaining a medical report from Dr Sevenster. Therefore, prescription did not begin to run until that date. The November 2017 notice was premature, as the applicant did not yet have the necessary facts to establish her claim. The delay in giving notice was reasonable and explained by the time required to obtain expert medical advice. The respondent failed to show unreasonable prejudice, as it was aware of the need to preserve evidence from the first notice. The applicant established good cause for condonation, and her application was granted with costs.

Citation
[2022] ZANWHC 49
Parties
Applicant: Sophy Gomotsegang Witbooi; Respondent: Member of the Executive Council for Health: North West Province
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
21 July 2022
Case Number
M551/2021
Procedural Posture
Condonation Application / Application for Condonation and Leave to Institute Proceedings
Outcome
Application for condonation granted; applicant given leave to institute legal proceedings; respondent ordered to pay costs.
Judges
JT Djaje
Legal Topics
Condonation, Prescription Act, Medical Negligence, Institution of Legal Proceedings Against Organs of State Act
Civil Procedure Delict Condonation Prescription Act Medical Negligence Institution of Legal Proceedings Against Organs of State Act

Case Brief

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Parties

Sophy Gomotsegang Witbooi

Applicant

Member of the Executive Council for Health: North West Province

Respondent

Procedural Posture

Condonation Application / Application for Condonation and Leave to Institute Proceedings

Legal Issues

  1. 1 Has the applicant's claim against the respondent prescribed under the Prescription Act?
  2. 2 Does good cause exist for condonation of the late notice to institute legal proceedings?
  3. 3 Will the respondent suffer unreasonable prejudice if condonation is granted?

Ratio Decidendi

The court found that the applicant only became aware of the material facts giving rise to her claim in January 2021 after obtaining a medical report from Dr Sevenster. Therefore, prescription did not begin to run until that date. The November 2017 notice was premature, as the applicant did not yet have the necessary facts to establish her claim. The delay in giving notice was reasonable and explained by the time required to obtain expert medical advice. The respondent failed to show unreasonable prejudice, as it was aware of the need to preserve evidence from the first notice. The applicant established good cause for condonation, and her application was granted with costs.

Court Disposition

Application for condonation granted; applicant given leave to institute legal proceedings; respondent ordered to pay costs.

Orders

  • The applicant’s late filing of the condonation application is condoned.
  • The applicant’s non-compliance in the service of her notice of intention to institute legal proceedings against the respondent in terms of section 3(4)(a) and 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 is condoned.