Failure to comply with written notice requirements timeously may not necessarily be fatal to a claim, write Natasha Naidoo and Sibusiso Madisha from Fairbridges Attorneys.
The Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (“the Act”) imposes an important procedural requirement on claimants seeking to institute proceedings against an organ of state. Before litigation may be started for the recovery of a debt, written notice must generally be given to the organ of state within six months from the date on which the debt became due.
Naidoo and Madisha write:
Section 3(4) of the Act allows a court to condone non-compliance where three requirements are met: the debt has not been extinguished by prescription, good cause exists for the failure to serve the notice timeously, and the organ of state has not been unreasonably prejudiced by the delay.
The Northern Cape High Court considered these requirements in a recent judgment. The judgment is particularly useful for parties involved in medico-legal litigation because it illustrates how courts approach a deficient explanation for delay, prospects of success and, importantly, allegations of prejudice by an organ of state.
Background
The plaintiff was a pharmacist at the Masakhane Clinic in Kimberley. On 15 November 2019, she allegedly sustained injuries when air-conditioning units fell on to her head and neck while she was at the clinic.
She subsequently instituted action against, among others, the MEC for Health, Northern Cape, claiming damages of R3.8m.
The MEC raised a special plea that she had failed to comply with section 3 of the Act. The plaintiff thereafter applied for condonation for her failure to give the required notice within the prescribed six-month period.
The MEC opposed the application on the basis that the plaintiff had knowledge of the facts giving rise to the claim at the time of the incident, had failed to adequately explain the delay, and that the delay had prejudiced the MEC’s ability to investigate and defend the claim.
When did the debt become due?
An important issue concerned the plaintiff's argument that the six-month notice period should only have begun once the full extent of her injuries and medical treatment became apparent. The Court rejected that argument.
The relevant question was when the plaintiff acquired knowledge of the material facts giving rise to her claim. The fact that the full extent of her injuries, complications or damages became known only later did not postpone the date upon which the debt became due.
This is an important distinction in personal injury and medico-legal claims. A claimant need not necessarily know the ultimate extent or monetary value of the damages before the statutory notice period begins to run. Knowledge of the material facts giving rise to the debt is what is relevant.
Good cause for the delay
The plaintiff relied on her physical and psychological condition after the incident. She alleged that she had undergone medical treatment and neck surgery, suffered from depression and had experienced difficulties, which affected her ability to pursue legal proceedings. She also attributed part of the delay to her former attorney’s failure properly to attend to the matter.
The court was critical of this explanation.
Her allegations regarding depression and her inability to pursue the claim were not adequately supported by evidence, and substantial periods of inactivity remained unexplained. The court described aspects of the explanation as vague and inadequate. That did not, however, bring the inquiry to an end.
In determining whether good cause had been established, the court also considered her prospects of success in the main action. One of the MEC’s principal defences was that the claim was barred by section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993. The Court considered that issue to depend on factual questions more appropriately determined at trial.
The plaintiff had therefore established an arguable case and there was no indication that she lacked intention to pursue her claim. Despite the shortcomings in her explanation, the court found that she had done sufficient, although only the minimum required, to establish good cause.
The judgment therefore demonstrates that the inquiry into good cause is not conducted in isolation. An inadequate explanation for delay may weigh heavily against an applicant, but the court considers the circumstances as a whole, including the prospects of success.
Claimants should nevertheless not regard this as licence to provide incomplete explanations. An application for condonation should account properly for the period of delay and, where reliance is placed upon illness or psychological incapacity, supporting evidence should be provided where possible.
Unreasonable prejudice
For defendants, perhaps the most significant aspect of the judgment concerns prejudice.
The MEC contended that the delay had impaired its ability to investigate the incident. It argued, among other things, that witnesses might no longer be available and that memories may have faded. The court found these allegations insufficient.
The MEC had not identified particular witnesses who could no longer be traced, documents that had been lost, or evidence that was no longer available because of the delay. The allegations of prejudice were therefore regarded as largely speculative.
The court also noted that documentation concerning the incident remained available and identified eyewitnesses who could potentially assist with the investigation.
The statutory enquiry is not simply whether some inconvenience or prejudice may arise from delay. Section 3(4) requires the organ of state not to have been unreasonably prejudiced.
The court found that the MEC had not demonstrated such prejudice and, having found that the claim had not prescribed and that good cause existed, granted condonation.
Practical implications for medico-legal claims
The judgment has a useful practical lesson for those defending claims on behalf of provincial Health Departments and other organs of state.
Where condonation is opposed on the basis of prejudice, it is not sufficient merely to state in general terms that memories may have faded, staff may have left employment or records may no longer be available. The prejudice should, as far as possible, be investigated and particularised.
For example, an organ of state should consider identifying specific doctors, nurses or other witnesses who can no longer be located, clinical or administrative records that have been destroyed, lost or are otherwise unavailable, evidence that could have been secured had notice been provided timeously, whether the physical circumstances giving rise to the incident can no longer be investigated, and how the passage of time has materially impaired the ability to investigate or defend the particular claim.
The connection between the late notice and the alleged prejudice should also be demonstrated. If the relevant records would have been unavailable regardless of the delay, or witnesses remain traceable notwithstanding the passage of time, the prejudice argument may carry considerably less weight.
Conversely, the judgment is a reminder to claimants that the statutory notice requirement should not be treated as a mere formality. The plaintiff succeeded despite the court being highly critical of aspects of her explanation. An applicant seeking condonation remains required to satisfy each of the statutory requirements.
Conclusion
The judgment demonstrates the balancing exercise involved in applications for condonation under section 3(4) of the Act.
A weak explanation for delay will not invariably defeat an application, particularly where there are reasonable prospects of success and no unreasonable prejudice to the organ of state. At the same time, courts remain entitled to scrutinise the explanation closely.
The most important practical takeaway is that prejudice should be proved rather than assumed. General assertions about fading memories, missing witnesses or lost documents may not suffice. A successful opposition to condonation is likely to be considerably stronger where the defendant can identify precisely what has been lost, why it has been lost and how the late notice has materially impaired the defence of the claim.
The case is Du Preez v MEC Department of Health, Northern Cape and Others (2157/2022) [2026] ZANCHC 67 (17 July 2026). The full judgment may be accessed here: Du Preez v MEC Department of Health, Northern Cape and Others
Co-authored by Natasha Naidoo (Director) & Sibusiso Madisha (Candidate Attorney)
Fairbridges Attorneys
Johannesburg
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