Brief Summary

Condonation — Late filing of notice — Application for condonation for late serving of notice of intention to institute legal proceedings against an organ of state — Applicant sought condonation more than two years after the Respondent denied compliance with the Act — Respondent's legal team initially indicated no opposition but later withdrew this position — Court must determine whether an agreement not to oppose existed and whether the Respondent was entitled to resile from it — Held: No binding agreement was formed as the Respondent validly withdrew its indication of non-opposition prior to acceptance by the Applicant; condonation application not granted.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an application for condonation brought in terms of section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The applicant sought condonation for the late service of a section 3(2) notice of intention to institute legal proceedings against the respondent, an organ of state.

The applicant, L H A, acted in her representative capacity as the mother and natural guardian of a minor child, M M L. The respondent was the MEC for Health of the Free State Provincial Government, cited as defendant in the main action.

Procedurally, the applicant had already instituted delictual action for damages, and the matter had been set down for a trial on the merits only for ten consecutive court days in October 2017. The condonation application was launched only shortly before the trial date, despite the respondent having raised non-compliance with the Act in its plea years earlier. The late launching of the application caused disruption to the trial allocation and required the condonation issue to be determined before the merits could proceed.

The dispute concerned compliance with the statutory pre-litigation notice regime applicable to organs of state, and in particular whether the applicant could obtain condonation for non-compliance with the notice time limits, as well as whether the respondent was procedurally barred from opposing the application due to an alleged agreement or concession by the State Attorney.

Material Facts

The material background to the intended delictual claim was that the minor child was born at Thebe District Hospital, Harrismith, in 2005, and suffers from cerebral palsy. The applicant alleged that the child sustained a hypoxic-ischaemic insult during birth resulting in severe and permanent brain damage, allegedly linked to prolonged labour and negligence by the respondent’s employees. Damages of R21 million were claimed in the main action.

It was common cause that the applicant’s attorneys posted a purported section 3(2) notice by registered mail on 30 June 2014, and summons was issued on 2 September 2014. The respondent placed compliance in issue in its plea dated 9 March 2015.

The condonation application itself was served on the State Attorney on 7 September 2017, shortly before the trial, notwithstanding that the plea years earlier had already contested compliance. The court treated the absence of an explanation for this delay in bringing the condonation application as a material feature of the case.

A further set of facts arose in a preliminary dispute about whether the respondent was entitled to oppose the condonation application. The State Attorney sent a letter dated 21 September 2017 stating, in effect, that the respondent would not oppose the application. It was undisputed that the respondent’s legal administration officer later instructed the State Attorney to withdraw that stance, and that a further letter dated 26 September 2017 communicated the withdrawal and a notice of intention to oppose was filed on the same day. The applicant nevertheless set the matter down as “unopposed”, and the respondent ultimately filed opposing papers on the first day of allocated trial time.

On the “good cause” enquiry, the applicant relied on her socio-economic circumstances and on the asserted lack of earlier knowledge that negligence might have caused the child’s condition. The applicant alleged she was told at around the child’s age of two years (circa 2007) that the child was brain-damaged due to lack of oxygen at birth, but contended she was not informed that this was potentially attributable to negligence. She asserted that she only suspected a legal claim in 2014 after meeting another woman at the hospital who had pursued a similar claim and referred her to attorneys.

The record also reflected that medical records were largely unavailable, a feature which affected both parties. The respondent relied on missing documentation and unavailable witnesses (including the death of a nurse and the disappearance of a doctor) to support an allegation of prejudice. The court accepted that the absence of records created difficulty for both prosecution and defence, but considered the cause and timing of the loss of records to be unclear on the papers.

Legal Issues

Two central legal questions required determination.

The first, treated as a point in limine, was whether the State Attorney’s letter of 21 September 2017 created a binding agreement, admission, or waiver/abandonment of rights such that the respondent could not oppose the condonation application; and, if not, whether the respondent was entitled to withdraw its stated non-opposition and proceed to oppose.

The second was whether the applicant satisfied the statutory requirements for condonation under section 3(4)(b) of the Act. This required determination of issues involving the application of legal standards to the facts: whether the debt had prescribed (not in dispute), whether good cause existed for the failure to serve the notice timeously, and whether the respondent was not unreasonably prejudiced by the failure.

The dispute therefore involved mixed questions of law and fact, and the court’s assessment required evaluative judgments about the adequacy of the explanation for delay, the fairness of permitting the claim to proceed, and the nature and reasonableness of any alleged prejudice to the organ of state.

Court’s Reasoning

Point in limine: alleged agreement / waiver / admission

The court rejected the applicant’s contention that the 21 September 2017 letter constituted a binding agreement that the condonation application would be unopposed. The reasoning proceeded from basic contract and mandate principles.

On the “agreement” argument, the court noted the absence of evidence that the applicant had requested an undertaking not to oppose, or that there had been an offer-and-acceptance exchange sufficient to establish consensus. In the court’s analysis, the letter could at most be viewed as an open offer capable of withdrawal prior to acceptance. The court relied on authority confirming that an offer may be withdrawn at any time before acceptance, and concluded that by the time the applicant asserted an agreement (27 September 2017), the respondent had already withdrawn the earlier stance and had communicated the withdrawal and filed opposition on 26 September 2017. On that basis the court treated the respondent as having acted within its rights to revoke the non-opposition stance before any acceptance.

On the “waiver” and “abandonment of rights” contentions, the court applied the principle that waiver must be clearly proved, including proof of full knowledge of the relevant facts and legal consequences and an intention to surrender the right. The court accepted the respondent’s version that neither the State Attorney nor counsel had full knowledge of material developments identified later in the respondent’s investigation (including difficulties relating to witnesses and records), and therefore could not be taken to have intentionally waived rights in the required sense.

The court further addressed the question of mandate. It accepted the respondent’s evidence that the legal administration officer was the only person authorised to instruct the State Attorney on settlement or agreements, and that no such instruction had been given. The court emphasised the principle that a legal representative with only a general authority may not compromise a client’s rights to the client’s detriment without a specific mandate, particularly in matters involving state departments and public funds. On this basis, the court held that the State Attorney and counsel lacked authority to bind the respondent to a decision not to oppose in the absence of a specific mandate, and that a client is not bound where an attorney exceeds mandate.

The court therefore concluded that the respondent was entitled to oppose the condonation application, and that the opposition was not unreasonable.

Condonation under section 3(4): statutory framework and application

The court set out the statutory scheme. Section 3(2)(a) of the Act requires notice to be served within six months from the date the debt became due. Section 3(3)(a) qualifies this by providing that a debt is not regarded as due until the creditor has knowledge of the identity of the organ of state and the facts giving rise to the debt, and further deems such knowledge to exist when it could have been acquired by reasonable care, absent wilful prevention by the organ of state.

The court rejected the applicant’s pleaded reliance on minority as excusing compliance, holding (with reference to authority) that the Act’s definition of “creditor” includes a person acting on behalf of a minor, so that the applicant was required to comply with the Act’s notice regime rather than rely on extended time periods in the Prescription Act applicable to minors.

As to the meaning of when a debt becomes due, the court accepted that the wording in the Act corresponds with that in the Prescription Act and that the concept “debt due” should bear the same meaning. Relying on constitutional and appellate authority, the court treated a debt as due when the creditor has a complete cause of action in the sense that the material facts necessary to institute action are in place. In delict, fault and unlawfulness are characterised as legal conclusions drawn from facts, but the creditor must have sufficient factual knowledge of the injury and its factual cause to ground a claim.

The court identified the three conjunctive requirements for condonation in section 3(4)(b): non-prescription (common cause), good cause, and absence of unreasonable prejudice.

On good cause, the court highlighted that an applicant must provide an explanation that is sufficiently full to enable the court to understand how the delay arose and to assess conduct and motives. It observed that the condonation application was itself launched long after the plea had raised non-compliance, and that no explanation was provided for the delay in bringing the condonation application once the need for it was apparent. The court also noted an “unexplained gap” in the applicant’s narrative, including a lack of detail about steps taken over several years to investigate the cause of the child’s condition.

Notwithstanding these deficiencies, the court considered factors bearing on fairness and the administration of justice. It accepted that the applicant’s socio-economic circumstances and dependence on public health services could realistically have impeded her ability to investigate causation and potential negligence, especially absent access to specialist advice. The court approached the “knowledge” issue with reference to authority cautioning against assuming that a patient will know, without professional advice and adequate information, what caused a medical condition or that it was attributable to error. It treated the core question as whether the applicant had reasonable grounds, prior to 2014, to suspect fault and to seek further advice; until then, the statutory knowledge requirement would not necessarily be met.

The court also considered the prospects of success as one factor in the good cause enquiry. It recorded that the expert material supported a diagnosis consistent with hypoxic-ischaemic injury, but stressed that the extensive absence of medical records limited the ability to identify timing, a specific hypoxic event, its cause, and the role of negligence. The court expressed concern that aspects of the expert analysis relied substantially on the applicant’s recollection many years after the event, and concluded that the applicant had no more than slim prospects of success on the merits. Even so, weighing all factors (including the position of the severely disabled minor who depended on others to litigate), the court concluded that it was in the interests of justice to find that good cause existed.

On prejudice, the court recognised that the applicant bore the onus to show the respondent was not unreasonably prejudiced. The applicant’s affidavit contained only a bare assertion of lack of prejudice. The respondent, by contrast, alleged prejudice based on missing records, the death and disappearance of key witnesses, and faded memories. The court accepted that missing records created difficulty for the respondent’s defence, but also observed that the same absence of records prejudiced the applicant in proving causation and negligence. Importantly, the court found it was not clear on the papers when the records were lost and therefore it was not established that the loss was caused by the applicant’s delay in giving notice; it also noted that the duty to safeguard records lay with the respondent.

In the circumstances, the court declined to find that the respondent’s prejudice was unreasonable to such an extent that the minor should be deprived of the opportunity to pursue the claim. The court therefore exercised its discretion to grant condonation under section 3(4).

Costs approach

On costs, the court distinguished condonation under the Act from ordinary condonation for non-observance of court procedure, and adopted the approach that, where opposed, costs should follow the result in applications of this nature. The respondent succeeded on the point in limine and was awarded costs for that issue. The applicant succeeded on the condonation application and was awarded costs for that portion, subject to excluding the costs already awarded against her on the preliminary issue.

Outcome and Relief

The court dismissed the applicant’s point in limine alleging an agreement not to oppose, and ordered the applicant to pay the costs occasioned by that adjudication, including the costs of two counsel, one being a Senior Counsel.

The court granted the applicant condonation for non-compliance with section 3 of the Act, and ordered that the costs of the condonation application follow the result, including the costs and fees of two counsel, one being a Senior Counsel, but expressly excluding the costs awarded on the point in limine.

Cases Cited

George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A).

Bellairs v Hodnett and Another 1978 (1) SA 1109 (A).

Wissekerke and Another v Wissekerke 1970 (2) SA 550 (A).

Phillips v Aida Real Estate (Pty) Ltd 1975 (3) SA 198 (A).

Ex parte Sussens 1941 (TPD) 15.

Pretorius v Greyling 1947 (1) SA 171 (W).

Goosen v Van Zyl 1980 (1) SA 707 (O).

Xatula v Minister of Police, Transkei 1993 (4) SA 244 (TkGD).

Bikitsha v Eastern Cape Development Board 1988 (3) SA 522 (E).

Ras v Liquor Licensing Board Area 11, Kimberley 1966 (2) SA 232 (CPD).

Dhlamini v Minister of Law and Order and Another 1986 (4) SA 342 (D).

Premier, Western Cape Provincial Government v B L [2012] 1 All SA 465 (SCA).

Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA).

Minister of Agriculture and Land Affairs v C J Rance (Pty) Ltd 2010 (4) SA 109 (SCA).

Minister of Safety and Security v De Witt [2008] ZASCA 103; 2009 (1) SA 457 (SCA).

Links v Department of Health, Northern Province 2016 (4) SA 414 (CC).

Truter and Another v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA).

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA).

Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A).

MEC for Education, KwaZulu-Natal v Shange 2012 (5) SA 313 (SCA).

Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA).

Makwelo v Minister of Safety and Security 2017 (1) SA 274 (GJ).

Legislation Cited

Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

Prescription Act 68 of 1969.

State Attorneys’ Act (as referred to in the judgment, section 3).

Rules of Court Cited

Uniform Rules of Court, Rule 35(1).

Uniform Rules of Court, Rule 35(5).

Uniform Rules of Court, Rule 35(6).

Uniform Rules of Court, Rule 35(8).

Uniform Rules of Court, Rule 35(10).

Held

The court held that the State Attorney’s letter indicating that the respondent would not oppose condonation did not constitute a binding agreement, waiver, or irrevocable admission preventing the respondent from opposing the application. In the absence of evidence of a request and acceptance giving rise to consensus, and in light of revocation before acceptance, no enforceable agreement arose. The court further held that waiver was not established because full knowledge and intention to abandon rights were not proved, and that the respondent was not bound because the State Attorney and counsel lacked a specific mandate to compromise the respondent’s position.

On the merits of condonation under section 3(4) of Act 40 of 2002, the court held that the claim had not prescribed and that, despite deficiencies in the applicant’s explanation and only slim prospects on the merits, good cause existed when evaluated in light of the applicant’s circumstances, lack of earlier actionable knowledge, and the realities of access to information and expertise. The court further held that the respondent had not shown prejudice of such an unreasonable kind as to justify refusing condonation, particularly given uncertainty as to when records were lost and the respondent’s responsibility for record-keeping.

LEGAL PRINCIPLES

The judgment applied the principle that an alleged concession not to oppose litigation relief will not bind a party as a contract unless the requirements of consensus are met; an offer may be revoked before acceptance, and revocation communicated before acceptance deprives the offeree of the ability to accept.

It applied established principles on mandate and authority, namely that an attorney or counsel acting under a general mandate is not entitled to compromise or abandon substantive rights to a client’s detriment without a specific mandate, and that a client is not bound where the representative exceeds authority. The judgment further applied the principle that waiver must be clearly proved, requiring proof of full knowledge of relevant facts and legal consequences and an intention to abandon the right.

On statutory condonation under section 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, the court applied the principle that the statutory requirements are conjunctive: the applicant must show that the debt has not prescribed, that good cause exists for the failure, and that the organ of state was not unreasonably prejudiced.

In interpreting when a debt becomes due for purposes of the Act’s notice period, the court applied the approach that “debt due” aligns with the Prescription Act concept, and arises when the creditor has the material facts necessary to institute action. In delictual claims, fault and unlawfulness are treated as legal conclusions drawn from facts, and the relevant statutory “knowledge” focuses on material facts rather than legal conclusions; in professional-negligence contexts, time does not begin to run until the claimant has sufficient factual basis to suspect fault so as to prompt further enquiry.

On costs, the judgment applied the principle that condonation applications under the 2002 Act are not ordinary procedural indulgences but applications for permission within statutory parameters; where opposed, costs ordinarily follow the result, assessed separately for distinct issues where appropriate.

L v MEC for Health of the Free State Provincial Government (4016/2014) [2017] ZAFSHC 213; [2018] 1 All SA 522 (FB) (19 October 2017)