Mntupi v Member of the Executive Council for Health, Eastern Cape Province

The applicant instituted a delictual claim for R5 million against the MEC for Health, Eastern Cape, alleging negligent medical treatment at Cecilia Makhiwane Hospital. Summons was issued on 3 August 2022 and served on the MEC and later on the State Attorney in East London. The respondent raised a special plea alleging non-compliance with section 2 of the State Liability Act 20 of 1957, contending that the summons was not properly served on the State Attorney within the prescribed period. The applicant then brought an interlocutory application seeking condonation for the alleged non-compliance and leave to proceed with the action.

The applicant was condoned for any non-compliance with section 2 of the State Liability Act, granted leave to pursue the medical negligence action to finality, and each party was ordered to pay its own costs.

The judgment clarifies the interpretation and purpose of section 2(2) of the State Liability Act, confirming that the provision is procedural and aimed at ensuring representation rather than creating a rigid bar to litigation. It reinforces the principle of substantial compliance and prejudice-based assessment in state liability matters.