A plaintiff who suffers damage usually has 3 years within which to sue the defendant. But a claim against the State must be notified within 6 months of an incident occurring. This notification comes before the summons is served. If a claim is not notified within this time period (set out in the Institution of Legal Proceedings Against Certain Organs of State Act 2002) then the claimant must apply for condonation before proceeding with the claim. Good cause must exist for the failure to issue the notice on time, and a full explanation for the delay must be given.
In Radebe v Minister of Police, the plaintiff (in a wrongful arrest claim) had to apply for condonation for the late issue of this notice.
The respondent argued that the lateness of the notice had severely prejudiced them in that they would encounter challenges in locating witnesses and evidence to defend the claim and that such witnesses may not be able to recollect all the facts related to the incident. The respondent provided no evidence in support of these statements.
Mr Radebe explained that as a lay person he was not aware of his rights and his entitlement to a claim against the respondent and only once having acquired such knowledge did he seek legal advice and issue the notice.
The court had to decide whether good cause existed for the failure to timeously notify the respondent of the intention to launch a claim and whether the respondent was unreasonably prejudiced by the failure to give timeous notice.
The court referred to Madinda v Minister of Safety and Security (2008) where it was held that a court should be slow to presume prejudice for which the respondent itself does not lay a basis. It was concluded that the respondent did not suffer any prejudice from the non-timeous notice.
In Madinda the court considered various factors to ascertain whether good cause existed for condoning late notice, which included the prospects of success in the proposed action, the reasons for the delay, the sufficiency of the explanation proffered, the bona fides of the applicant and any contribution by other parties to the delay.
An applicant must ‘satisfy’ the court that condonation is warranted (they do not have to prove their case on a balance of probabilities at this stage).
The court found that the application was bona fide and that the case had sufficient prospects of success. Condonation was granted.