The MEC for Education, KwaZulu-Natal v Shange

In June 2003 the respondent, then a 15-year-old Grade 9 learner, was struck in the eye by the tip of a belt wielded by a teacher administering corporal punishment to another learner. The teacher told the respondent the injury was a mistake, which the respondent accepted. Only in January 2006, after advice from a family friend and an advocate at the Public Protector’s office, did the respondent learn that he could pursue a civil claim against the provincial Department of Education (the appellant). A notice in terms of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was initially (and incorrectly) sent to the Minister of Education, not the MEC. Summons was served on the appellant in December 2008. The appellant raised a special plea of non-compliance with the Act, prompting the respondent to seek condonation. The High Court granted condonation, and the MEC appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel, and the order granting condonation to the respondent was upheld.

The case clarifies the application of s 12(3) of the Prescription Act where there are joint debtors, confirming that prescription does not begin to run until the creditor has knowledge of the identity of the relevant organ of state as debtor. It also reinforces a flexible, fairness-based approach to condonation under the Institution of Legal Proceedings Against Certain Organs of State Act, especially in cases involving minors and vulnerable litigants.