This blog was drafted by: Paulette Khumalo, Associate

A party who intends to bring a claim for damages against an organ of state must comply with the Institution of Legal Proceedings against Certain Organs of State Act, 2002.

Section 3(2)(a) of the Act provides that a notice must be served on the organ of state in accordance with section 4(1) within six months from the date on which the debt became due. The notice must briefly set out the facts giving rise to the debt and the particulars of such debt, according to the claimant’s knowledge.

Subsection 3(3) provides that for purposes of subsection (2)(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt. The claimant will be regarded as having acquired such knowledge as soon as they could have acquired knowledge by exercising reasonable care, unless the organ of state wilfully prevented them from acquiring such knowledge.

In a May 2022 judgment handed down in the Mthatha High Court, Zenande Zulu obo Lelethu Zulu vs MEC for Health, Eastern Cape Province (5147/2018) [2022] ZAECMHC 14, the court made a decision regarding whether a claimant’s failure to deliver notice for 1 year and 9 months should be condoned.

The claimant was a layperson in the Eastern Cape who had brought a claim for damages against the MEC for Health in the Eastern Cape Province. The claimant’s claim arose from the alleged negligence of the MEC’s staff at a district hospital, where she gave birth to a child on 25 April 2016 who was later diagnosed with cerebral palsy and passed away on 29 April 2018, two years after his birth. The claimant issued summons against the MEC on 1 October 2018.

In order for the court to exercise its discretion in favour of granting condonation, a reasonable explanation must be given for the delay, with regard being had to section 3(4)(b) of the Act.

The court noted that while the applicant alleged in her application for condonation that she only became aware that she had a claim against the MEC on 6 February 2018, this cannot have been true. On her own version, as far back as August 2016 a co-patient had advised her that she had a claim against the state and that she should consult with attorneys to confirm. On 18 October 2016, the plaintiff’s attorney had advised her that the nursing staff were negligent in handling her baby and that she had a civil claim for damages against the MEC. The claimant’s attempt at explaining the delay for the delivery of the statutory notice was “fraught with unexplained gaps”, and there is no explanation as to what the applicant or her attorney were doing for the year and nine months before the notice was given.

It is a legal principle that “a person whose alleged legal interests are threatened should be vigilant in protecting them”. The court noted that the law comes to the aid of those who are alert to protect their rights and not those who slumber.

The court also said that, while the courts have been reluctant to penalise a litigant where the delay is attributable to a legal representative’s negligence, they have emphasised that there is a limit beyond which a litigant cannot escape the results of their representatives’ lack of diligence or the insufficiency of the explanation tendered.

Without a reasonable and acceptable explanation for the delay in the delivery of the statutory notice, the prospects of success are immaterial. On the other hand, without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

The court also notably highlighted the purpose of the statutory requirement for notice to be given, which is set out in the preamble to the Act as including “to regulate the prescription and to harmonise the periods of prescription of debts for which certain organs of state are liable…” and stated that the time limit has a legitimate government purpose. Prejudice is inherent in every case where there has been an unreasonable delay, because witnesses may have resigned or died by the time the matter comes to court and documentary evidence may have dissipated.

In the circumstances, the court dismissed the plaintiff’s application for condonation, with costs.