Section 3(1)(a) of the Institution of Legal Proceedings against Certain Organs of State Act of 2002 stipulates that anyone who wishes to institute legal proceedings for the recovery of a debt against an organ of state must give notice of their intention to do so within six months after the debt becomes due. In a recent judgment, the court ruled that such a debt only became due after the claimant sought legal advice.

The claimant sought declaratory relief to the effect that her notice complied with section 3, specifically relying on subsection (3), which stipulates that a debt is only regarded as due when the creditor has knowledge of both the facts giving rise to the debt and the identity of the organ of state – with the caveat that the creditor is deemed to have such knowledge as soon as they could have required it by exercising reasonable care.

The claimant was readmitted to the hospital (the respondent) on 5 December 2019 after her womb was not properly cleaned during a preceding Caesarean procedure. Following her discharge, the claimant underwent subsequent medical check-ups and treatment until late 2020, which the court found subjected her to prolonged trauma, discomfort, and ill-health.

As a result of the above, the claimant was only psychologically and financially in a position to consult an attorney on 23 March 2021, when she was informed for the first time that she had a legitimate case of medical negligence against the hospital. Based on these instructions, the claimant delivered a section 3(2)(a) notice on the respondent on 9 April 2021 and the summons on 30 March 2022.

The claimant argued that the debt only became due on 23 March 2021 because prior to consulting with her attorney, she had no knowledge of her potential claim against the hospital. In the alternative, the claimant sought condonation for late notice.

The court found that, while the claimant was likely aware since 5 December 2019 that she may have a claim for damages, she could not reasonably have appreciated that the respondent was her debtor before acquiring legal representation. Furthermore, the court found that due to her personal circumstances, it was reasonable that she only obtained legal advice in 2021.

As a result, the court was satisfied that the notice in terms of section 3(2)(a) was given timeously and ordered the respondent to pay the claimant’s costs. The court also found that, even if the notice had been late, it would nonetheless have granted condonation as the claimant was able to demonstrate that there was reasonable explanation for the delay, that the application was bona fide and that she had reasonable prospects of success against the respondent.

It may be contended that this finding stretches the provisions of section 3 beyond its sensible limits. Notwithstanding, it is important for organs of state to be aware that the date upon which a debt becomes due is not necessarily the day that the cause of action occurs, as the court may consider the claimant’s personal circumstances and access to legal representation.

Emma v MEC for Health Gauteng Province (2022/12482) [2024] ZAGPJHC 276 (15 March 2024) (saflii.org)

This blog was authored by Brigitte Geyer, candidate attorney, Norton Rose Fulbright South Africa.