Jansen Van Vuuren, Dillon Wesley v The Member of the Executive Council for Health, Gauteng Province

The appellant instituted action against the respondent for loss of support and emotional shock arising from the death of his mother on 22 December 2011. The mother had been admitted to Charlotte Maxeke, Johannesburg Academic Hospital in August 2011 for surgery. After surgery, she experienced partial paralysis allegedly from spinal anaesthetic and later developed severe pressure sores and sepsis. The appellant alleged the hospital staff was negligent in various respects, including failing to properly nurse the deceased, provide appropriate pressure relief measures, and treat her in accordance with protocol for immobile diabetic patients. The appellant was 14 years old at the time of his mother's death and turned 18 on 9 March 2015. He claimed he only became aware that his claim lay against the MEC rather than the hospital itself on 28 November 2016, when he consulted with attorneys. Statutory notice in terms of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was given to the respondent on 31 March 2017. The appellant applied for condonation for allegedly late filing of the statutory notice.

• Whether the appellant complied with the requirements of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 regarding timeous service of statutory notice
• Whether condonation should be granted for alleged late service of the statutory notice under s 3(4) of the Act
• Whether the appellant's claim had prescribed in terms of the Prescription Act 68 of 1969
• When the debt became 'due' for purposes of s 3(2)(a) of the Act - whether from the date of death (22 December 2011) or from the date the appellant identified the correct debtor (28 November 2016)
• Whether knowledge of the appellant's father and uncle could be imputed to the appellant as a minor

1. The appeal is dismissed. 2. Each party is to pay their own costs.

Where a party alleges in their own pleadings that they have complied with the requirements of s 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, an application for condonation for late filing under s 3(4) is unnecessary and cannot succeed. For purposes of determining when a debt becomes 'due' under s 3(2)(a) of the Act, a creditor must have knowledge of the identity of the correct organ of state against whom the claim lies. Knowledge of third parties, including close family members, cannot be imputed to a minor creditor for purposes of determining when the debt became due.

The Court noted that it was not necessary to decide on the issue of whether the appellant's claim had prescribed, as this was a matter for the trial court hearing the special plea. The Court also made observations about the costs order, noting that it would be inequitable for the appellant to bear the costs of the appeal where the decision was based on the appellant's own case rather than on the respondent's submissions, and where the respondent had filed an unnecessarily lengthy 73-page answering affidavit (excluding annexures).

This case clarifies the application of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, particularly regarding when a debt becomes 'due' for purposes of the six-month notice requirement. It emphasizes that a creditor must have knowledge of the identity of the correct organ of state before the debt can be considered due. The case is significant in demonstrating that where a litigant's own pleaded case shows compliance with statutory requirements, an application for condonation is unnecessary and cannot succeed. It also illustrates the Court's approach to minor claimants and the timing of prescription, and confirms that knowledge of third parties (even close family members) cannot be imputed to a minor. The case demonstrates the importance of carefully framing one's case and the limitations on introducing new grounds of relief on appeal.