Rossouw v Blignaut & Wessels and Another

The applicant, Ms Martha Johanna Petronella Rossouw, instituted an action for loss of support on behalf of herself and her two minor children arising from the death of her husband in a motor vehicle collision on 29 May 2011 in the Free State. She instructed attorneys shortly after the death, but they incorrectly pursued a claim against the Road Accident Fund and failed to serve the statutory notice required under s 3(2)(a) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 on the correct organ of state. The notice was only served on the MEC for Police, Roads and Transport, Free State, on 13 December 2018, more than seven years late. The MEC raised a special plea of non-compliance, prompting Ms Rossouw to apply for condonation under s 3(4). The High Court and the Full Court refused condonation, finding no good cause, no reasonable explanation for the extensive delay, lack of prospects of success, and potential prejudice to the MEC. Ms Rossouw sought special leave to appeal to the Supreme Court of Appeal.

The application for special leave to appeal was granted, but the appeal was dismissed. The order of the Full Court refusing condonation was upheld, and the applicant was ordered to pay costs, including the costs of two counsel.

The case reaffirms the strict but flexible application of s 3(4) of the Institution of Legal Proceedings against Certain Organs of State Act and underscores that all three statutory requirements—non-prescription, good cause, and absence of unreasonable prejudice—must be satisfied. It reinforces the principle that litigants cannot automatically escape the consequences of attorney negligence without a full and detailed explanation and confirms the high threshold for special leave to appeal in the Supreme Court of Appeal.