Z.F obo Y.A.F v Enoch Mgijima Local Municipality (3615/2023; 3616/2023) [2024] ZAECMKHC 136 (22 August 2024)

Parties

Procedural Posture

Condonation Application / Application for Condonation for Late Service of Section 3 Notice Under Act 40 of 2002

Legal Issues

1. 1 Whether the applicants provided adequate explanation for the delay in serving the section 3 notice under Act 40 of 2002.
2. 2 Whether the respondent municipality suffered unreasonable prejudice due to the late notice.
3. 3 Whether the applicants' claims have prescribed under the Prescription Act.

Ratio Decidendi

The court found that both applicants provided adequate explanations for their delay in serving the section 3 notice, stemming from ignorance of their rights and the identity of the municipality as the responsible organ of state. The applicants acted promptly upon becoming aware of their rights. The municipality failed to establish real prejudice, as it was able to plead fully and should have retained records of the incidents. The claims of the minor child had not prescribed, and the prescription defence raised by the municipality does not, on its own, establish that the claims have prescribed; this is a matter for trial. The applicants are from disadvantaged backgrounds, and denying...

Court Disposition

Condonation granted for the applicants' failure to serve the section 3 notice timeously; costs awarded against the respondent.

Orders

• Condonation is granted for the applicants’ failure to serve the notices contemplated in section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 within the period laid down in section 3(2)(a) of the Act.
• The respondent is to pay the costs of the applications on scale B in terms of rule 69(7).