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[2021] ZAMPMBHC 38
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MEC for Health, Mpumalanga v Makundi (1259/2017) [2021] ZAMPMBHC 38 (23 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
MPUMALANGA DIVISION (MAIN
SEAT)
Case
Number: 1259/2017
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
DATE
:
20/8/2021
In
the matter between:
MEC
FOR HEALTH,
MPUMALANGA
Applicant
and
MAKUNDI,
C
Respondent
In
RE:
MAKUNDI,
C
Plaintiff
and
MEC
FOR HEALTH,
MPUMALANGA
Defendant
This
judgment shall be distributed electronically to the parties and
published on the SAFLII website. The judgment is deemed to
be
delivered on 23/8/2021 at 09:00.
JUDGMENT
Roelofse
AJ:
[1]
The
respondent instituted an action against the applicant for alleged
medical
negligence.
The summons was issued on 30 June 2017 and served on or about 27 July
2017. In his particulars of claim the respondent
alleges that he was
admitted at the Rob Ferreira hospital
[1]
in Mbombela, Mpumalanga on 1 August 2016. In addition to the usual
allegations made in claims for medical negligence, the respondent
pleaded that he has complied with the provisions of section 3
[2]
of the Institution of Legal Proceedings Against
Certain
Organs of State, Act 40 of 2002 (“
the
Act”
).
[2]
As
will appear from below, the applicant essentially seeks an order from
this court which will shut the door of the court to the
applicant,
alternatively that the court compels the applicant to exercise his
right to ask for condonation.
[3]
[3]
The applicant delivered a notice of intention
to defend the action on
13 August 2017. Instead of delivering a plea, the applicant delivered
a notice in terms of Rule 35(14),
inter
alia
,
seeking a copy of the “alleged” section 3 notice in terms
of the Act and proof that same was delivered to the applicant.
[4]
On
16
January
2018,
the
respondent
replied
to
the
plaintiff’s
Rule
35(14)
notice. The
respondent furnished a faxed copy of the respondent’s section 3
notice as well as an undated email sent to the
respondent’s
attorneys by an official of the applicant. The fax transmission
report records that the fax was sent on 11 April
2017 at 02:52 PM. In
paragraph 1 of the email, a Thobile Matebula, with email address,
ThobelaMat@mpuhealth.gove.za
,
who the
respondent alleges is the applicant’s employed
at the
applicant’s legal services department, who wrote as follows:
“
We refer to the
above matter and confirm having received your Notice i.t.o Sec 3
of Act 40 of 2002.”
The
reference given in the email is the same reference as on the faxed
notice. It therefore clearly referred to the respondent’s
section 3 notice that was sent by fax.
[5]
Nearly 18 months after the respondent’s
response to the rule
35(14) notice was delivered and on 14 November 2019, the applicant’s
attorneys wrote to the respondent’s
attorneys and recorded that
the respondent has failed to comply with the provisions of “inter
alia” section 3 of the
Act, that the applicant does not condone
the respondent’s failure to comply with the provisions of the
Act and that the respondent
is still to launch an application for
condonation [ostensibly in terms of section 3(4) of the Act].
[6]
The letter
of 14 November 2019 was followed up by no less than eleven further
letters by the applicant’s attorneys to the
respondent’s
attorney spanning another period of
more than
18 months before the application was launched.
[4]
No application for condonation
was
launched by the respondent nor has the applicant delivered a plea.
The applicant was also not placed under bar to deliver a
plea by the
respondent.
[7]
The aforesaid circumstances preceded the
launching of this
application. The applicant seeks the following relief:
“
1.
Declaring that the Respondent did not comply with the provisions of
the Institution of Legal Proceedings Against Certain Organs
of State
Act, 40 of 2002 (“the Act”);
2.
Declaring that the Respondent failed to apply for condonation
in terms of the
Act, despite being called upon to do so
since 14 November 2019;
3.
That the main action in the abovementioned matter be dismissed
due to the
Respondent’s failure to comply with
the provisions of the Act.
4.
Alternatively, that
4.1
The main action in the abovementioned matter be stayed pending
the
outcome of a condonation application, which is to
be brought within 10 (ten) days from the date of the order; and
4.3
Should the Respondent fail to apply for condonation
timeously, or at
all, the Applicant will be entitled to approach court, on the papers
duly amplified, to have the action dismissed
with costs;
5.
Costs on an attorney and client scale de bonis propriis, such
costs to include
the costs of the application as well
as the litigation to date; alternatively Costs of this application,
including the cost of Counsel.
6.
……”
[8]
In the founding affidavit, the applicant
alleges that the applicant
has failed to comply with certain of the provisions of sections 3 and
4 of the Act. For that reason,
I set out the provisions of those
sections.
[9]
Section 3 reads as follows:
“
3.
Notice
of
intended
legal
proceedings
to
be
given
to
organ
of
state.—(1)
No
legal
proceedings for the
recovery of a debt may be instituted against an organ of state
unless—
(a)
the creditor has given the organ of state in question notice
in writing of his or her
or its intention to institute
the legal proceedings in question; or
(b)
the organ of state in question has consented in writing to the
institution of that legal
proceedings—
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set
out in subsection (2).
(2)
A notice must—
(a)
within six months from the date on which the debt became due,
be served on the
organ of state in accordance with
section 4 (1); and
(b)
briefly set out—
(i)
the facts giving rise to the debt; and
(ii)
such particulars of such debt as are within the knowledge of
the creditor.
(3)
For purposes of subsection (2) (a)—
(a)
a debt may not be regarded as being due until the creditor has
knowledge of the
identity of the organ of state and of
the facts giving rise to the debt, but a creditor
must
be regarded as having acquired such knowledge as soon as he or she or
it
could have acquired it by exercising reasonable
care, unless the organ of state wilfully prevented him or her or it
from acquiring
such knowledge; and
(b)
a debt referred to in section 2 (2) (a), must be regarded as
having become due on the fixed date.
(4)
(a) If an organ of state relies on a creditor’s failure
to serve a notice in terms of subsection (2) (a), the creditor may
apply to a court having jurisdiction for condonation of
such
failure.
(b)
The court may grant an application referred to in paragraph
(a) if it is satisfied that—
(i)
the debt has not been extinguished by prescription;
(ii)
good cause exists for the failure by the creditor; and
(iii)
the organ of state was not unreasonably prejudiced by the
failure.
(c)
If an application is granted in terms of paragraph (b), the
court may grant leave to
institute the legal
proceedings in question, on such conditions regarding notice to the
organ of state as the court may deem appropriate.”
[10]
I shall refer to the notice prescribed in section 3 of the Act as
“the section 3 notice” henceforth.
[11]
The
relevant part of Section 4 of the Act now
[5]
reads as follows:
“
4. Service of
notice.—(1) A notice must be served on an organ of state by
delivering it by hand or by sending it by certified
mail or, subject
to subsection (2),
by sending it by electronic mail or
by transmitting it by facsimile, in the case where
the
organ of state is—
(a)
a
national
or
provincial
department
mentioned
in
the
first
column
of Schedule 1, 2 or 3
to the Public Service Act, 1994 (Proclamation No. 103
of
1994), to the officer who is the incumbent of the post bearing the
designation
mentioned in the second column of the said
Schedule 1, 2 or 3 opposite the name of the relevant national or
provincial department:
Provided that in the case of the Department of
Police, the notice
must be sent to the National
Commissioner and the Provincial Commissioner
of the
province in which the cause of action arose, as defined in section 1
of
the South African Police Service Act, 1995;
(b) to (f)……….
;
[6]
(2) If a notice has
been sent by electronic mail or transmitted by facsimile as
contemplated in subsection (1), the creditor must—
(a)
take all reasonable steps to ensure that the notice has been
received by the officer or person to whom it was so sent or
transmitted;
and
(b)
within seven days after the date upon which that notice was
so sent or transmitted, deliver by hand or send by certified mail a
certified copy of that
notice to the relevant officer
or person referred to in subsection (1), which must be accompanied by
an affidavit by the creditor
or the person who sent or transmitted
the notice—
(i)
indicating the date on which and the time at which, and the
electronic
mail
address
or
facsimile
number
to
which,
the
notice was
so sent
or
transmitted;
(ii)
containing any proof that it was sent or transmitted;
(iii)
setting out the steps taken in terms of paragraph (a); and
(iv)
indicating whether confirmation of the receipt of the notice
has been obtained and, if applicable, the name of the officer or
person
who has given
that confirmation.”
[12]
The applicant alleges that the respondent has failed to comply with
the provisions of the Act in the following respects: the section 3
notice was addressed to the applicant instead of the Head of
the
Department of Health; the section 3 notice was delivered late; the
section 3 notice did not comply with the provisions of section
3(2)(b) of the Act; the respondent has failed to comply with the
provisions of section 4(2) of the Act.
[13]
The
respondent opposes the application and is of the view he has complied
with the
provisions
of the Act and therefore that condonation is not required.
[7]
This stance was reaffirmed by counsel appearing for the respondent in
his heads of argument as well as during the hearing of the
matter.
Later this stance changed when counsel said that
condonation
will only be applied for if the court finds that there was indeed
non-
compliance
with the provisions of the Act. In addition, in an email, dated 25
March 2021,
the
respondent’s attorney informed applicant’s attorney that
the respondent’s intention is to
apply
for
condonation.
This
email
is
also
in
direct
contradiction
with
the
belief
the
respondent holds in the answering affidavit that condonation is not
required.
[14]
The applicant does not allege that no notice was sent in terms of
section 3 of the Act. The applicant alleges other instance of
non-compliance with the provisions of sections 3 and 4 of the Act.
I
proceed to deal with each of the instances of non-compliance that is
alleged by the applicant.
The
section 3 notice was addressed to the wrong person
[15]
The
applicant alleges that the section 3 notice was addressed to the
applicant instead
of the Head
of the Department of Health as required in terms of section 4(1)(a)
of the Act.
In response
thereto, the respondent alleges that the section 3 notice was sent to
“
the
Legal
Services
Department as a custodian and also a supporting unit for all
departmental legal issues, including supporting the Head of
the
Department.”
[8]
The
respondent continues to allege that there was no prejudice as there
was an acknowledgment of receipt of the section
3 notice
and therefore not sent to the wrong department.
[16]
In terms of the provisions of section 4(1)(a), the section 3 notice
had to be served upon the Head of the Department of Health. The
section 3 notice was addressed to the applicant and faxed to an
official, who upon the respondent’s version, is employed in the
Province’s legal department.
[17]
I find that the respondent has failed to comply with the provisions
of section 4(1)(a) of the Act in not serving the section 3 notice
upon the Head of the Department of Health.
The
section 3 notice was delivered late
[18]
In this
regard the applicant alleges that the respondent’s cause of
action arose on 1 August 2016 when he was admitted in
the hospital as
pleaded in the particulars of claim.
[9]
In response to this application, the respondent alleges that although
he was admitted on 1 August 2016, it was only after follow-up
visits
that he, on 27 January 2017 became aware
of the
cause of his injures
[10]
. If
the respondent’s version is accepted, the section 3 notice was
delivered within six months from the date on which the
debt became
due as contemplated in section 3(2) of the Act. The section 3 notice
was sent on 11 April 2017.
[19]
In
paragraph 19.2 of the answering affidavit, the respondent denies that
the section
3 notice
was sent out of time. In amplification of this denial, the respondent
states as follows:
[11]
“
I mentioned
that I went the to the Robs [sic] Ferreira Hospital first on the 1
st
August 2016 that is when I alleged that the oral/tactic [sic] started
when I told the official at the hospital that I was feeling
sever
[sic] phones on the left side e [sic] off the body, at this stage
this is when I was admitted in their books file opened
[sic],
treated and discharged with a follow up dates given to me for
further check-ups. The injection was not broken on this date.”
“
I was seen
subsequently again on further dates on 27/09/2016, 18/01/2017,
24/01/2017 and on the 27
th
January
2017 it is on this Date [sic] that the treatment that caused my
injuries arose as a follow up from previous treatment that
started
from 1 August 2016. I then consulted my attorneys on the 31
st
March 2017 and the section 3 notice was sent on the 11
th
April 2017. I therefore submit that the notice was sent on time”.
[20]
The
hospital records that were discovered under the applicant’s
rule 35(14) notice indicates that the respondent was first
admitted
in the hospital on 1 August 2016, possibly
suffering
from kidney stones. The respondent attended the hospital on several
occasions subsequent
to
his
visit
on
1
August
2016.
In
January
2017,
the
respondent
attended
the
hospital. It was recorded that the respondent complained of lower
back lain and pain in his
right leg.
The respondent reported that he was injured “at the back during
a procedure”.
[12]
The
record further indicates that the respondent complained of severe
sensation in his right
lower limb
following a lumber puncture that was administered. The records show
that the
respondent
previously had a lumber punch. The respondent was referred to the
neurosurgery clinic
[13]
which
he has visited but that there was no improvement in the respondent’s
condition and that the cause of the complaint
is that the
respondent’s nerve root was injured
[14]
.
In his particulars of claim, the respondent alleges that an injection
was
administered
negligently. I accept, for purposes of this application that the
respondent is referring to the lumber punch procedure
that was
administered upon him. In the section 3 notice, the respondent
alleges as follows:
“
Client
indicates that when he went to Rob Ferriera hospital for further
treatment as per referral, a doctor did an LP - through
his spinal
cord and he hear and injection sort of breaking inside him, he bled.
He started having so much pain and complicated
further to an extent
that he is now using crutches.”
[21]
The independent hospital records of the respondents and what is
set
out in the section 3 notice (albeit in an amateurish and inelegant
manner) therefore tally up.
[22]
In response
to the respondent’s aforesaid allegations, the applicant
alleges that the respondent attempts to introduce a new
version “…
at
this late stage
”.
[15]
The applicant furthermore alleges as follows:
“
For the first
time since the inception of this matter does the Respondent allege
that
the cause of action arose on 27 January 2017. This
is also the first time that the Respondent alleges that “an
injection was
broken” which now seemingly appears to be his
cause of action. If that is his case premised on this new cause of
action,
it
is clear that such cause prescribed. On the
other hand, and if the new cause of action
serves the
Respondent’s actual cause, there is no purpose in condoning the
non- compliance and to allow the matter to proceed.
This application
is therefore to succeed.”
[23]
The applicant is simply wrong in this regard. It is not a cause
of
action that prescribes but a claim. The respondent’s claim was,
when the action was instituted that he was admitted at
the hospital
where he was treated over a period of time which treatment the
respondent alleges was negligent and caused him damages.
The
respondent’s cause of action is founded on delict and is still
so founded. There is therefore no merit in the applicant’s
contention that the respondent now relies on a new cause of action
that as prescribed.
[24]
In any
event, a debt as contemplated in the Act becomes due only when the
creditor
has
knowledge of the identity of the organ of state and of the facts
giving rise to the debt by exercising reasonable care.
[16]
The applicant does not deny the respondent’s version of the
cause of the injury. I accept the respondent’s version
that the
facts giving rise to the debt, on the papers, arose on 27 January
2017.
[25]
In the premises, the section 3 notice was delivered in time, i.e
within 6 months after the debt became due.
The
notice was inadequate
[26]
The applicant alleges that the section 3 notice did not comply with
the provisions of section 3(2)(b) (i) and (ii) of the Act. The
question therefore that needs to be answered is whether the facts
giving rise to the debt and such particulars of such debt as were
within the knowledge of the applicant was sufficiently set out.
The
Act requires that same must be briefly set out.
[27]
The
applicant attacks the notice in this regard on the basis that the
Section 3 notice
was “…
.
divorced from sufficient facts giving rise to the alleged debt.”
[17]
[28]
The
respondent meets this challenge by alleging that he did not have the
hospital records at the time he consulted with his attorney
but that
the file reference number was specifically included in the section 3
notice therefore the applicant was able to establish
efficiently what
had transpired as it was documented. In addition, the respondent
alleges that the applicant is the custodian of
the medical
records.
[18]
[29]
The applicant meets this allegation by stating that no mention is
made in the section 3 notice of any further dates, nor any further
treatment or admissions received at the hospital.
[30]
The section 3 notice includes the respondent’s hospital file
number as well as his full names. The section 3 notice states that
the respondent intends to institute an action against the applicant
for medical negligence and proceeds to set out as follows:
“
Client
indicates that when he went to Rob Ferreira Hospital for further
treatment
as per referral, a doctor did an LP - through
his spinal cord and he hear an injection
sort of
breaking inside him, he bled. He started having so much pain and
complicated further to an extent that he is now using crutches”
[31]
The
section 3 notice further sets out that the hospital had the duty of
care and that as a result of negligence the respondent has
suffered
damages “…
.
in a form of pain and suffering, he cannot walk normally without
crutches he is in constant pain, and he has lost
his
job as he can no longer perform his duties he is now dependent on
third parties.”
[19]
In
section 3 in notice, the respondent's payment on demand more of an
amount of R 8 000 000.00.
[32]
The purpose
of giving a section 3 notice is to give an organ of state sufficient
opportunity to investigate a claim laid against
it, to consider same
responsibly and to decide
whether the
claim should be accepted, rejected or settled.
[20]
This is the reason for the requirement that sufficient facts and
those facts within the knowledge of the defendant must be set
out for
without sufficient facts the organ of state will be unable to
investigate,
consider
and decide on the fate of the claim.
[33]
I find that the respondent’s section 3 notice, if same were
properly considered, does set out sufficient facts for the applicant
to have taken action in assessing the claim. The claim intended
was
set out, the hospital concerned and the records which could be
interrogated by the applicant was properly identified. In the
premises, I find that the section 3 notice complied with the
provisions of section 3(2)(b)(i) and (ii) of the Act.
Failure
to comply with the provisions of section 4(2) of the Act.
[34]
It is common cause on the papers that the respondent did not follow
the procedures prescribed in section 4(2) of the Act. It has been
held that these procedures are peremptory and condonation is
required
in the absence of compliance therewith – see:
Gcam-Gcam v
Minister of Safety and Security (187/11) [2017] ZAECMHC 31 (12
September 2017)
at para. 19.
[35]
In the premises, I find that the respondent has failed to comply
with
the provisions of section 4(2) of the Act.
[36]
The last arrow in the applicant’s bow is that the respondent
has waived his right to apply for condonation. This is raised in the
applicant’s heads of argument. The applicant referred
the court
to
Mutual Life Insurance Co of New York v Ingle
1910 TPD 540
at
55
, where the following was said:
“
Waiver is the
renunciation of a right. When the intention to renounce is expressly
communicated to the person affected he is entitled to act upon
it, and the right is gone. When the renunciation though not
communicated,
is evidenced by conduct inconsistent with enforcement
of the right, or clearly showing an intention to surrender it, then
also
the intention may be acted upon, and the right parishes.”
[37]
In this regard the applicant relies upon the fact that the respondent
says in the answering affidavit that he is not going to apply for
condonation. However, what the applicant misses is this –
the
respondent expresses the view that no condonation is required and
therefore the respondent does not intend to apply for condonation.
This in my view does not amount to a waiver by the respondent of the
right to apply for condonation. This view is fortified by
counsel for
the respondent’s confirmation that condonation will be sought
if the court finds that same is required. In any
event, in the email
of the respondent’s attorney, the intention was clearly stated
that the respondent intends to apply for
condonation. If a party does
not expressly waive a right, and waiver is to be inferred, the
conduct relied upon must be such as
are more consistent, on a
reasonable view thereof, with an intention to waive the right in
question – see:
Coppermoon Trading 13 (Pty) Ltd v
Government of the Province of the Eastern Cape and Another
(1949/05) [2019] ZAECBHC
16;
2020 (3) SA 391
(ECB) (18 June
2019)
at para. 25. In para. 27 of
Coppermoon
, the
following is said:
“
The burden of
proof is on the party who alleges that an election has been made, or
that a right has been a waived. By reason of
the fact that no-one is
presumed to
waive his rights, clear proof is required
of an intention to do so. (Ellis and Others
v Laubscher
1956 (4) SA 692
(A) at 902E). In Laws v Rutherford
1924 AD 261
(at
263) the position was stated as follows: “The onus is
strictly on the appellant. He
must show that the
respondent, with full knowledge of her right, decided to abandon
it, whether expressly or by conduct plainly inconsistent with
an intention to enforce
it.” (Also Montesse
Township & Investments Corporation v Gouws & Another supra at
381B; Borstlap v Spangeberg supra
at 704; Feinstein v Niggli and
Another supra at 698H, and The Road Accident Fund v Mothupi supra at
para [19].) The conduct from
which waiver is to be inferred, must be
unequivocal, “that
is to say, consistent with no
other hypotheses” (The Road Accident Fund v Mothupi
supra at para [19]).)”
In my view, the applicant
has not satisfied the onus resting upon her to prove that the
respondent has waived his right to approach
court for condonation.
The
effect of the findings above
[38]
Whether condonation should be granted or not is not at issue in
this
application. What is at issue is whether the court must shut the
doors of court to the respondent on the findings that the
section 3
notice was addressed to the wrong person and that the procedures
provided for in section 4(2) have not been complied
with and whether
this court should force the respondent to apply for condonation for
its remiss.
[39]
In
Maharaj
and Others v Rampersad
[21]
,
the Appellate Court held that:
"The inquiry, I
suggest, is not so much whether there has been 'exact' 'adequate' or
substantial' compliance with this injunction
but rather whether there
has been compliance therewith. This enquiry postulates an application
of the injunction to the facts and
resultant comparison between what
the positions is and what, according to the requirements of the
injunction, it ought to be. It
is conceivable that a Court might hold
that, even though the position as it is not identical with what it
ought to be, the injunction
has nevertheless been complied with. In
deciding whether there has been a compliance with the injunction the
object sought to be
achieved has been achieved are of importance..."
[40]
What was the effect of the section 3 not addressed to the Head of
the
Department and instead to the applicant and sent to the legal
department of the applicant. Receipt of the section 3 notice
was
acknowledged. The purpose of informing the department of the intended
proceedings was achieved. Same applies with the respondent’s
failure to comply with the provisions of section 4(2) of the Act. The
purpose of the provisions of that section is to ensure that
the
department to be sued has indeed received the notice. By
acknowledgment of receipt of the section 3 notice by email
demonstrates
that the notice was received. What further purpose would
compliance with the provisions of section 4(2) of the Act achieve
that
was not yet achieved? I say none.
[41]
The
Constitutional Court
[22]
held
that:
“
Assessing the
materiality of compliance with the legal requirements in our
administrative law is, fortunately, an exercise encumbered
by excess
formality. Formal distinctions were drawn between 'mandatory' or
'peremptory' provisions on
the one hand and 'directory'
ones on the other, the former needing strict compliance
on
pain of non-validity, and the latter only substantial compliance or
even non- compliance. That strict approach has been discarded.
Although a number of factors
need to be considered in
this kind of enquiry, the central element is to link the question of
compliance to the purposes of the
provision. In this regard O'Regan J
succinctly put the question in ACDP v Electoral Commission as being
'whether what the applicant
did constituted compliance with the
statutory provisions viewed in the
light of their
purposes." [footnote omitted]
[42]
In disregarding the strict approach to the enforcement of the
provisions
of the Act, I am of the view that it would be wrong to
close the doors of the court to the respondent at this stage. The Act
makes
provision for condonation. Whether the respondent will cease
this opportunity is up to the respondent.
[43]
The court is empowered to determine its own process and is obliged
to
ensure the speedy finalization of matters. What must happen next is
that the applicant must deliver its plea if so advised.
The order I
intend to make will provide for this.
Costs
[44]
There is no reason why costs should not follow the result.
[45]
In the premises, I make the following order:
(a)
The application is dismissed.
(b)
The applicant is ordered to pay the respondent’s
costs.
(c)
The respondent is ordered to file and deliver
her plea within 10 days
of the date of this order.
Roelofse
AJ
Acting
Judge of the High Court
DATE
OF HEARING:
12 August 2021
DATE
OF JUDGMENT:
23 August 2021
APPEARANCES
FOR
THE APPLICANT:
Mr.
Raath of Adendorff Theron Inc.
FOR
THE RESPONDENT:
Adv. Lindhoudt
INSTRUCTED
BY:
Mabasu Attorneys
[1]
The Rob Ferreira hospital is a provincial hospital falling under the
control of the applicant.
[2]
Section 3 imposes a duty upon a person intending to claim a debt
from an organ of state to give the organ of state notice of
the
intended proceedings. See paragraph 9 below where the provisions of
section 3 is reproduced.
[3]
See paragraph 7 below where the relief that is sought in the notice
of motion is reproduced.
[4]
The application was issued on 23 Jun3e 2021.
[5]
Para. (a) was substituted by s. 32 of Act No. 8 of 2017. The
amendment took effect on 2 August 2017. Before the substitution
of
paragraph (a), the section read as follows:
“
(a) a national or
provincial department mentioned in the first column of Schedule 1, 2
or 3 to the Public Service Act, 1994 (Proclamation
No. 103 of 1994),
to the officer who is the incumbent of the post bearing the
designation mentioned in the second column of the
said Schedule 1, 2
or 3 opposite the name of the relevant national or provincial
department;” The amendment was therefore
subsequent to the
respondent’s section 3 notice which was sent per fax on 11
April 2017. The amendment is not material
for purposes of this
application.”
[6]
Not in issue in this application.
[7]
In paragraph 21.1 of the answering affidavit, the respondent states
as follows:
“
The Respondent
avers that he does not have to apply for condonation herein, if the
Applicant believes and wishes to deal with
non-compliance may the
applicant plead same, Respondent will be able to reply to the
special plea. I submitted that this application
seeks to be a short
cut and brought on technicality. The Applicant can plead in this
matter Applicant has documents to enable
her to plead.”
[8]
Paragraph 19.1 of the answering affidavit.
[9]
Paragraph 4 of the particulars of claim.
[10]
Incorrectly numbered paragraph 9.2.1 of the answering affidavit.
[11]
In incorrectly numbered paragraphs 9.2.1 and 9.2.2.
[12]
Page 124 of the record.
[13]
Pag3 122 of the record.
[14]
Page 134 of the record.
[15]
Paragraph 35 of the replying affidavit.
[16]
Section 3(3)(a) of the Act.
[17]
Paragraph 19.3 of the founding affidavit.
[18]
Paragraph 19.3 of the answering affidavit.
[19]
[20]
Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010
(4) SA 109
(SCA) at para [13]. See: Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
CC at para. [9].
[21]
1964 (4) SA 638
(A) at 646C-D.
[22]
In All-pay Consolidated v Chief Executive Officer, SASSA
2014 (1) SA
604
(CC) at para. 30