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[2013] ZANCHC 26
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Links v MEC, Department of Health, Northern Cape Province (1870/2012) [2013] ZANCHC 26 (24 May 2013)
11
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IN THE
HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE HIGH COURT, KIMBERLEY
Case number: JA 78/10
Case No: 1870/2012
Heard
on: 22/04/2013
Delivered
on:24/05/2013
In
the matter between:
DIRK LINKS
.
............................................................
APPLICANT/
PLAINTIFF
AND
THE MEC, DEPARTMENT
OF HEALTH, NORTHERN
CAPE PROVINCE
.............................................
RESPONDENT/DEFENDANT
JUDGMENT
MAMOSEBO AJ
:
[1] The applicant,Dirk Links, is an adult male residing
at Promise Land P10, Galeshewe, Kimberley, Northern Cape Province.
The respondent
is the MEC of the Department of Health, Northern Cape
Province. For convenience the parties are referred to as cited in the
summons.
[2] The plaintiff seeks an order that his non-compliance
with sec 3(1) of Act 40 of 2002 be condoned, that he be granted leave
to
continue with his claim against the defendant (the MEC)under Case
1360/2009 and for the MEC to pay the costs of this application.
[3] The issue for determinationis when the prescription
started to run in respect of the plaintiff’s claim for damages
against
the MEC. In terms of
s 11(d)
of the
Prescription Act, 68 of
1969
, the claim is subject to a three-year extinctive prescription
period.
[4] A summons was issued by the plaintiff
againstthedefendant on 06 August 2009.The MECdelivered two special
pleas in terms of Rule
33(4) of the Uniform Rules of Court. The first
is that the claim has prescribed in terms of the Prescription Act,68
of 1969, in
that the cause of action arose on 26 June 2006 and that
the summons wasonly issued on 6 August 2009, three years and two
months
later. The second special plea is that the applicant has not
timeously given notice of his intention to institute civil
proceedings
against the MEC as required by s 3 of the Institution of
Legal Proceedings against Certain Organs of State Act, 40 of 2002. By
serving the notice on the defendant only on 12 May 2009, a period
outside the prescribed six months period, the notice has been
rendered invalid or at best for the plaintiff putative or
inchoate.The plaintiff now applies for condonation for his
non-compliance
with the provisions of Act 40 of 2002.
[5] Pertaining to the factsin brief. The plaintiff
alleges medical negligence against the employees of Kimberley
Hospitalwho he
claims to have deformed his arm. On 26 June 2006, he
injured his thumbthrough dislocation.He received treatment at
Kimberley Hospital.
A plaster of paris was cast for his left hand and
forearm. He was onlytreated for a dislocated thumb and discharged. He
was advised
to return after ten days to remove the plaster cast. On
30 June 2006 he returned to the hospital complainingof pain in the
arm.
On04 July 2006 the plaintiffonce more returned to Kimberley
Hospital because he still experienced pain in the left arm. On or
about
05 July 2006 this left thumb was amputated.His treatment
included wound inspection and redebriment of the left forearm. The
redebriment
was caused by maltreatment of the dislocated thumb from
26 June 2006 until amputation on 04 July 2006. In the circumstances
the
plaintiff became aware of the amputation on 05 July 2006. He was
discharged from hospital around the end of August in 2006.A notice
in
terms of Act, 40 of 2002, was served on the defendant on 12 May 2009
afterwhich theplaintiffissued summons on 06 August 2009.
[6] In November 2006 the plaintiff approached a firm of
attorneys Booysen Macleod to investigate the possibilities of a claim
for
medical negligence. No instructions or proper instructions were
taken by these attorneys due to the plaintiff’s lack of funds.
[7] The plaintiff approached the Legal Aid Justice
Centre in Kimberley during December 2006 seeing that he
wasindigent.Although
he does not remember the name of the legal aid
practitioner who assisted him that day he was asked by this official
verbally to
return on 06 March 2007 when they will commence with the
investigation of his case. He also advised the plaintiff to obtain
copies
of the hospital records in the meantime. The plaintiff
requested his cousin around December 2006 to obtain his medical
records
from Kimberley Hospital on his behalf. The request was denied
by hospital personnel as the records are confidential.
[8] His subsequent numerous visits to the Legal Aid
Centre, Kimberley as reflected in his founding affidavit are 10 May
2007, 27
June 2007, 12 October 2007, 21 November 2007, 02 January
2008, 17 April 2008, 23 June 2008, 10 September 2008, 09 October
2008,
11 December 2008, and 24 March 2009. The plaintiff states that
he was seen by a different practitioner on each occasion. It must
be
said that these visits demonstrate that he pursued his action
diligently.
[9] On 27 June 2007 heconsulted with Mr Jansen van
Vuuren of the Legal Aid Centre, Kimberley, who is apparently the
supervisor.
Every time when he was called in by Mr Van Vuuren to
visit the Legal Aid Centre, he obliged. Although he was assured
during all
of his visits that his matter is receiving attention it
was only when his file was handed over to a private attorney, Mr Van
Niekerk,
that some progress was made.
[10] The plaintiff only consulted Mr Van Niekerk on 15
July 2009. Two days thereafter, on 17 July 2009, theplaintiff
consulted with
an advocate. Summons was issued on 06 August 2009;
thus more than three years had lapsed from the date of his first
treatment.
Mr Van Niekerk made attempts to obtain the hospital file
on 14 September 2009 but still in vain. The hospital only provided
part
of the records on 01 November 2010.
[11] According to the plaintiff the plaster cast on his
thumb and forearm was removed by the ambulance personnel. It is not
in dispute
that he was in hospital from the date of his operation on
5 July 2006 until the end of August 2006.
[12] The issues to be decided in this matter centres on
two pieces of legislation, namely, the
Prescription Act, 68 of 1969
,
and The Institution of Legal Proceedings against Certain Organs of
State Act, 40/2002.
[13]
Sec 11
of the
Prescription Act provides
that:
“
The periods of prescription of
debts shall be the following:
(d) save where an Act of Parliament provides otherwise,
three years in respect of any other debt.”
[14] In terms of
s11
(d) of the
Prescription Act read
with
section 12(1)
thereof civil debts prescribe three years after
the debt is due. According to
section 12(1)
, the debt must be
immediately payable.
[15] Sec 12(3) of the Prescription Act, 68 of
1969,provides:
“
(1) Subject to the provisions
of subsections (2), (3) and (4),
prescription
shall commence to run as soon as the debt is due
.
(2) If the debtor wilfully prevents the creditor from
coming to know of the existence of the debt, prescription shall not
commence
to run until the creditor becomes aware of the existence of
the debt.
(3) A debt shall not be deemed to be due until the
creditor has knowledge of the identity of the debtor and of
the
facts from which thedebt arises:
Provided that a creditor shall be
deemed to have such knowledge if he could have acquired it by
exercising reasonable care.”
[16] From the arguments as well as the papers filed of
record there is no evidence that the plaintiff was prevented by the
hospital
personnel “from coming to know about the debt”
(sec 12(2). The plaintiff certainly knew the identity of the
debtor(s)
from the outset. What remains to be answered is whether the
plaintiff had actual or deemed knowledge of “the facts from
which
the debt arises”, as required by s12 (3), before
06
August 2009 when the summons was issued.
[17] Mr Botha, for the plaintiff, suggested that if the
plaintiff had not obtained knowledge by the end of August 2006, then
he
would concede that the cause of action cannot be said to have
prescribed. He contends that unless the Court finds that the
plaintiff
had knowledge by 5 July 2006 of relevant facts or could
have obtained knowledge of the relevant facts, it cannot be assumed
that
knowledge of facts is knowing about the amputation and the loss
of a thumb. According to him the occurrences of 05 July 2006 are
not
facts as the plaintiff did not have knowledge at the time of his
discharge from the hospital that the doctors were negligent.
Plaintiff says the following at para 40 of his founding affidavit to
the notice of motion:
“
(
M
)
et
my ontslaguit die Hospitaal is ekdeureen van die geneeshere by die
Hospitaalmeegedeeldateknieweer die gebruik van my
linkerhandsalherwinnie.”
[18] Tshiqi JA
in
Macleod v Kweyiya
(365/12)
[2013] ZASCA 28
(27 March 2013)
at para 9 states:
“
(9) In order to
successfully invoke
s12
(3) of the
Prescription Act, either
actual or
constructive knowledge must be proved. Actual knowledge is
established if it can be shown that the creditor actually
knew the
facts and the identity of the debtor….. Constructive knowledge
is established if the creditor could reasonably
have acquired
knowledge of the identity of the debtor and the facts on which the
debt arises by exercising reasonable care.”
Tshiqi JAgoes on at para 13 to say:
“
(13) It is the negligent,
and not the innocent inaction that
s12
(3) of the
Prescription Act
seeks
to prevent and courts must consider what is reasonable with
reference to the particular circumstances in which the plaintiff
found
himself or herself.”
[19] In
Deysel v Truter and Another
2005 (5) SA
598
(C)
MloziAJ had found that the prescription did not start
to run in respect of plaintiff’s claim until a doctor’s
opinion
was obtained. VanHeerden JA (having reversed this decision)
said the following in
Truter and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA
168
(SCA)
at p174 C-D
“
I am of the view that the
High Court erred in this finding. For the purposes of the Act, the
term ‘debt due’ means a
debt, including a delictual debt,
which is owing and payable. A debt is due in this sense when the
creditor acquires a complete
cause of action for the recovery of the
debt, that is, when the entire set of facts which the creditor must
prove in order to succeed
with his or her claim against the debtor is
in place or, in other words, when everything has happened which would
entitle the creditor
to institute action and to pursue his or her
claim.”
[20] Grosskopf JA in
Van Staden v Fourie
1989 (3)
SA 200
(A) at 216 D-E
said:
‘
Artikel 12(3) van die
Verjaringswetstelegternie die aanvang van verjaringuittotdat die
skuldeiser die volleonvang van syregteuitgevind
het nie. Die
toegewingwat die Verjaringswet in hierdieverbandmaak, is beperk tot
kennis van “die feitewaaruit die skuldontstaan”.’
[21] Van Heerden JA goes on to say in Truter’s
decision at 174 G -175 A (para 19) citing from Maasdorp JA in
Mckenzie
v Farmer’s Cooperative Meat Industries Ltd 1922AD 16 at 23
:
‘
Cause of action’ for the
purposes of prescription thus means
‘…
every fact which it
would be necessary for the plaintiff to prove, if traversed, in order
to support his right to the judgment of
the Court. It does not
comprise every piece of evidence which is necessary to prove each
fact, but every fact which is necessary
to be proved.’
[22] Applying the law to the facts of this case, the
plaintiff’s cause of action was complete and the debt of the
defendant
(MEC) became due and payable as soon as the first known
harm was sustained by the plaintiff.The cause of action arose on 26
June
2006 when plaintiff first presented himself in hospital for
medical treatment.This was however denied by the plaintiff who
alleged
that he only became aware of the facts by end of January
2007, from what he was informed upon his discharge from the hospital
that
he will not regain the use of his left arm.
[23] I find the plaintiff’s argument in paragraphs
103 and 104 of his founding affidavit as quoted hereunder not
persuasive
considering the Supreme Court of Appeal decisions already
discussed above in relation to when acause of action arose:
‘
(E)
k
het egternog steeds niegeweet, en konnog steeds nievasstel, sonder
die hospitaalrekords en –notas op die l
ė
er,
wat die oorsaak van die probleem was en wie / of
watdaarvoorverantwoordelik was nie. Ekdoen met respekaan die
handdatekdeur
die uitoefening van redelikesorg op die vroegste teen
die einde van Januarie 2007 van die feitebewuskongeword het, indien
die Regshulpraad
die hospitaalrekordsaangevra het.”
[24] The plaintiff’s own medical expert, Dr
Reynecke, has confirmed in his report, a point which was not disputed
in argument
bydefendants, that the plaintiff’s treatment from
03 July 2006 onwards was medically correct. According to the doctor,
the
damage was then already done. Mr Botha contends that the running
of prescription was delayed by the delay in the provision of the
hospital records as well as the plaintiff’s admission into
hospital. This approach is not borne out by the following dictum
by
Van Heereden JA in Truter’s case p175 B:
“
As indicated above, the
presence or absence of negligence is not a fact; it is a conclusion
of law to be drawn by court in all circumstances
of the specific
case. Section 12(3) of the Act requires knowledge only of the
material facts from which the debt arises for the
prescriptive period
to begin running- it does not require knowledge of the relevant legal
conclusions (ie that the known facts
constitute negligence) or of the
existence of an expert opinion which supports such conclusions.”
See
also
Mkhatshwa v
Minister of Defence
2000 (1) SA 1104
(SCA) para 23 at 1112H.
[25] In
Minister of Finance and Others v Gore NO
2007 1 SA 111
(SCA) at 119 para 17
Cameron et Brand JJA said:
“
This Court has, in a series
of decisions, emphasized that time begins to run against the creditor
when it has the minimum facts
that are necessary to institute action.
The running of prescription is not postponed until a creditor becomes
aware of the full
extent of its legal rights, nor until the creditor
has evidence that would enable it to prove a case ‘comfortably’.”
[26] The plaintiff in this case became aware of the
amputation on 05 July 2006. He had suspected prior to this date while
still
in hospital that something was not right.In my view, plaintiff
ought reasonably to have realised on or about 15July 2006 that the
operation was not successful; alternatively that the subsequent
treatment was not properly done or that there was no proper remedial
medical follow up action. The plaintiff’s knowledge can be
imputed to him from the time the plaster cast was removed. From
the
papers I have not discerned any event that interrupted or could be
construed to have interrupted the running of the prescription.
[27] The following passage appears in,
Prescription
in South African Law, J Saner at 3-69 issue 19
:
“
Where the plaintiffs could
have issued summons against the Government of the Republic of South
Africa within the prescriptive period,
but failed to do so because
his legal advisors failed to appreciate the fact that this would have
been competent in the circumstances,
the court upheld a plea of
prescription. This it did on the basis that the plaintiff became
aware that the state farm in question
(on which the fire affecting
the plaintiffs had started) belonged, ultimately, to the Government
of the Republic of South Africa,
on a date more than three years
prior to issue of summons. However, despite receiving information to
this effect, the plaintiff’s
attorneys continued to try to
ascertain the identity of actual department of state which owned the
farm. Only when they had done
this did they issue summons
accordingly. Unfortunately, as noted, this was too late.”
[28] Mr Van Rhyn, for the defendant, argued persuasively
that this claim does not fall under s 13 (1)(a) of the 1969
Prescription Act. The
provision deals with an impossibility which
prevents a plaintiff instituting the proceedings within the three
year period. See
Lombo v African National Congress
2002 (5) SA
668
SCA at 678H – 679 A.
[29] Consequently, it becomes apparent that the
plaintiff’s claim has prescribed. It has taken the plaintiff
more than three
years before issuing summons against the MEC. It is
my view that the plaintiff was in possession of sufficient
information to lodge
a valid claim against the defendant.
I consequently come to the conclusion that the
plaintiff’s cause of action has prescribed.
THE RELATIONSHIP BETWEEN
SECTION 11(d)
OF THE
PRESCRIPTION ACT 68 OF 1969
AND SECTIONS 2 AND 3 OF ACT 40 OF 2002
[30] The second special plea is that of failing to give
notice within the prescribed period. I must therefore determine if
the argument
has merit to warrant condonation as prayed for. I have
already stated earlier that I have not discerned any event that
interrupted
or could be construed to have interrupted the running of
the prescription. If the plaintiff’s claim had not prescribed,
I
would have condoned his default in giving timeous notice to the
defendant for the reasons set out below. This aspect is also relevant
in the event that it could be found that I was wrong in finding that
the plaintiff’s cause of action had prescribed.
[31] Sec 3 of The Institution of Legal Proceedings
against Certain Organs of State Act, 40/2002, provides:
‘
3(1) No legal proceedings
for the recovery of a debt may be instituted against an organ of
state unless –
A 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
(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
s 4(1);
(3) For purposes of subsection 2(a)-
(a) A debt may not be regarded as 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 s(2)(a) the creditor may apply
to
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.’
(my emphasis).
[32] It is also necessary to mention the provisions of
section 2(2) referred to in s3 (3) (b) when dealing with this matter.
“
2(2) Subject to sec 3 and
subsections (3) and (4), a debt which became due –
Before the fixed date, which has not been
extinguished by prescription and in respect of which legal
proceedings were not instituted
before that date; or
After the fixed date,
will be extinguished by prescription as contemplated
in Chapter III of the Prescription Act, 1969 (Act 68 of 1969), read
with the
provisions of the Act relating thereto.
(3)subject to subsection (4), any period of
prescription which was applicable to any debt referred to in
subsection (2)(a), before
the fixed date, will no longer be
applicable to such debt after the fixed date.
(4)(a) The expired portion of any period of
prescription applicable to a debt referred to in subsection 2(a),
must be deducted from
the said period of prescription contemplated in
Chapter III of the Prescription Act, 1969, read with the provisions
of that Act
relating thereto, and the balance of the period of
prescription so arrived at will constitute the new unexpired portion
of prescription
for such debt, applicable as from the fixed date.
(b) If the unexpired portion of the period of
prescription of a debt referred to in paragraph (a) will be completed
in 12 months
after the fixed date, that period of prescription must
only be regarded as having been completed 12 months after the fixed
date.”
[33] The Act defines both the terms ‘creditor’
and ‘debtor’. A creditor is defined as ‘
a person
who intends to institute legal proceedings against an organ of state
for the recovery of a debt or who has instituted such
proceedings,
and includes such person’s tutor or curator if such person is a
minor or mentally ill or under curatorship,
as the case may be.
’
On the other hand, ‘Debt’ is defined as ‘
any
debtarising from any cause of action-
(a) which arises from delictual, contractual or any
other liability, including a cause of action which relates to or
arises from
any-
(i) act performed under or in terms of any law; or
(ii) omission to do anything which should have been
done under or in terms of any law; and
(b) for which an organ of state is liable for payment
of damages.’
Organ of State’ includes – any provincial
department’.
[34] It is not in dispute that the applicant’s
written notice of intention to institute legal proceedings for
recovery of
the ‘debt’ marked ‘H1” dated 23
April 2009 from the Legal Aid Board addressed to the MEC for Health,
falls
outside the 6 months period prescribed by Act 40 of 2002.
[35] Notice is defined in s 1 (vi) of Act 40 of 2002 as
‘a notice contemplated in section 3(1) (a). In terms of this
section,
the creditor must give an organ of state written notice of
the intention to institute legal proceedings. Cloete JA in
Premier,
Western Cape v Lakay
2012 (2) SA 1
(SCA) at page 9 para9C-D
states:
“
The primary purpose of the
2002 Act is to require that a notice of intention to institute legal
proceedings be given at an early
stage to an organ of State,
obviously to enable it to investigate the basis of the
proposed claim
:
Mohlomi v Minister
of Defence 1997 (1)SA 124 (CC)
[1996] ZACC 23
;
(1996 (12) BCLR 1559)
para
9 and cases quoted thereinin fn5.”
[36] The plaintiff applies for condonation for the
failure to comply with the requirement to file his written notice
within the
6 months period. It is so that the court can exercise its
discretion in deciding whether to grant condonation. Gubbay JA in
Stambolie
v Commissioner of Police
1990 (2) SA 369
(ZS) at 374 H
made the following remarks:
“
Although one may envisage
situations in which the person would be absolutely unable to give
notice and commence action within the
times permitted, for instance
he may have been incapacitated in an accident, the adequacy of the
period must be tested against
the normal and not the extraordinary
situation. For statutes of limitation do not distinguish between just
and unjust delay. This
means that in every rare case a person with a
good claim, through no dilatoriness or fault on his part but due to
circumstances
beyond his control, will be barred from asserting a
constitutional right.”
[37] In considering whether condonationmay be granted or
not for the plaintiff’s failure, regard should be had to sec
3(4)
which provides that:
“
a
court
may grant an application for condonation for such failure if it is
satisfied on three matters:
That the debt has not been extinguished by
prescription;
That good cause exists for the failure by the creditor;
and
That the organ of State was not unreasonably prejudiced
by the failure.” (My emphasis)
[38] The Supreme Court of Appeal in
Madinda v
Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at 316 para 8
C-D
said:
“
The
phrase
‘if [the court] is satisfied’ in s 3(4) (b) has long been
recognised as setting a standard which is not proof
on a balance of
probability. Rather it is the overall impression made on a court
which brings a fair mind to the facts set up by
the parties. See eg
Die AfrikaansePersBeperk v Neser
1948 (2) SA 295
(C) at 297. I see no
reason to place a stricter construction on it in the present
context.”
[39] I have already dealt with this first requirement on
whether or not the debt has been extinguished by prescription. The
second
requirement, whether or not good cause exists, as stated by
Heher JA in
Madinda
at page316 para E-F, continues:
“‘
Good cause’
looks at all those factors which bear on the fairness of granting the
relief as between the parties and as affecting
the proper
administration of justice. In any given factual complex it may be
that only some of many such possible factors become
relevant. These
may include prospects of success in the proposed action, the reasons
for the delay, the sufficiency of the explanation
offered, the bona
fides of the applicant, and any contribution by other persons or
parties to the delay and the applicant’s
responsibility
therefor.”
[40] Further on at 317C- Ethe Learned Judge states:
‘
Good cause for the delay’
is not simply a mechanical matter of cause and effect. The court must
decide whether the applicant
has produced acceptable reasons for
nullifying, in whole, or at least substantially, any culpability on
his or her part which attaches
to the delay in serving the notice
timeously. Strong merits may mitigate fault; no merits may render
mitigation pointless. There
are two main elements at play in s4(b),
viz the subject’s right to have the merits of his case tried by
a court of law and
the right of an organ of state not to be unduly
prejudiced by delay beyond the statutorily prescribed limit for the
giving of the
notice. Sub paragraph (iii) is directed, at least in
part, to whether the subject should be denied a trial on the merits.
If it
were not so, consideration of prospects of success could be
entirely excluded from the equation on the ground that failure to
satisfy
the court of the existence of good cause precluded the court
from exercising its discretion to condone. That would require an
unbalanced
approach to the two elements and could hardly favour the
interests of justice.”
[41] I do not see any point why the Legal Aid Board
attorneys invited the plaintiffto their offices on numerous
occasions. Clearly
a lot of nonchalance was displayed. In one of the
letters informing him of progress in the matter dated 17 April 2008
and marked
Annexure ‘I’, The Legal Aid Board stated that
the subject matter was “Re: your matter : divorce”. The
plaintiff’s
matter before them was about medical negligence and
not divorce. This was utterly ridiculous even for a candidate
attorney. On
the facts before me my sense is that they did not cover
themselves in glory. It is undesirable at this stage to say more on
this
aspect because the Legal Aid Board is not a party to these
proceedings. See
Mazibuko v Singer
1979 (3) SA 258
(W)
in
which Colman Jsaid at 261 C:
“
In the carrying out of his
contractual obligations the defendant was obliged (either personally
or through others) to exercise knowledge,
skill and diligence to be
expected of an average practicing attorney.
See
Mouton
v Die Mynwerkersunie
1977 (1) SA 119
(A)
at 142-3 and
authorities there cited. It is the plaintiff’s case that the
defendant fell short of that standard.”
It follows that the defendant’s special pleas
must unfortunately succeed
.
ON THE QUESTION OF COSTS
:
[42] The costs must follow the result. The defendant is
indigent and was carried by the Legal Aid Funding for a considerable
period.
The cost order may be an empty shell. I will grant it on
principle nevertheless.
[43] Due to the relative complexity of the case I will
exercise my discretion to allow a fee for two counsel.
[44]
The following order is made
:
The defendant’s special plea of prescription in
terms of
section 11(d)
of the
Prescription Act 68 of 1969
is upheld.
The plaintiff’s claim is dismissed with costs, which includes
the costs of twocounsel.
Condonation for the plaintiff’s failure to serve
the notice contemplated in
s 3(1)(a)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
within
the period laid down in s 3(2)(a) of the Act must fail in view of
the order in para 1.
_________________________________
MAMOSEBO, AJ
ACTING JUDGE
NORTHERN CAPE DIVISION
For the Applicant/Plaintiff : Adv C Botha
Instructed by : Elliot Maris Wilmans and Hay Attorneys
For the Respondent/Defendant : AdvAJRVan Rhyn SC
AdvND Khokho
Instructed by: The State Attorneys
Kimberley