NMZ obo SFZ v Member of the Executive Council for Health and Social Development of the Mpumalanga Provincial Government

The appellant, NMZ, acting on behalf of her minor child SFZ, instituted a medical negligence claim against the MEC for Health and Social Development of Mpumalanga. SFZ was born on 3 October 2012 at Piet Retief Hospital after prolonged labour and was later diagnosed with cerebral palsy due to birth asphyxia. NMZ alleged negligent monitoring and management by hospital staff, particularly a failure to adhere to mandated four-hourly foeto-maternal monitoring. NMZ experienced significant difficulty obtaining hospital records despite repeated requests between 2013 and 2016. She eventually obtained the records in June 2016, after which her attorneys served a notice in terms of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 in July 2016. The notice was served outside the six-month statutory period. The High Court dismissed her application for condonation, finding the delay unreasonable and the claim lacking prospects of success. She appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the Mpumalanga Division of the High Court was set aside and replaced with an order granting condonation for the late service of the s 3 notice. No order as to costs was made.

This case is significant for reaffirming the correct approach to condonation applications under s 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act. It clarifies that prospects of success need only be assessed on a prima facie basis and that conflicting expert evidence should ordinarily be resolved at trial. The judgment also underscores that delays attributable to state organs, particularly failures to provide records, weigh heavily against claims of prejudice. It reinforces judicial sensitivity to claims brought on behalf of minors in medical negligence matters.