IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable / Not reportable
Case no: 2132/2021
In re 2100/2021
In the matter between
ROSE VERONICA DICKSON APPLICANT
and
THE MEC: DEPARTMENT OF HEALTH
FREE STATE PROVINCE RESPONDENT
Coram: Opperman J
Heard : 28 November 2024
Delivered: 7 May 2025 . This judgment was handed down electronically by circulation
to the parties’ representative s by email and release d to SAFLII. The date and time for
hand down is deemed to be 7 May 2025 at 15h00
Summary: Application for condonation – s 3(4) of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 .
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ORDER
1. The applicant complied with the requirements of s 3(2)(a) of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002, having regard to the
provisions of s 3(3)( a);
2. In the alternative is condonation granted to the applicant in terms of section 3(4)( b)
of the Legal Proceedings Against Certain Organs of the State Act 40 of 2002 for
failure to serve a notice in terms of s 3(2)(a).
3. No order is made as to costs.
___________________________________________________ _________________ _
JUDGMENT
_____________________________________________________________________
Opperman J
Background and the law
[1] This is an application concerning compliance with the requirements of s 3 of the
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the
Act).1 The applicant instituted action proceedings against the respondent for the
1 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 int ention 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 deb t; 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 fa cts giving rise to the debt, but a creditor
must be regarded as having acquired such knowledge as soon as he or she or it
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payment of damages allegedly suffered by her pursuant to medical services provided
by the respondent.
[2] Section 3(1) (a) of the Act provides that no legal proceedings for the recovery of
debt may be instituted against an organ of the state unless the creditor has given said
organ of the state notice in writing of the intention to institute the legal proceedings.
Section 3(2) (a) of the Act prescribes that the notice must be served within six months
from the date on which the debt became due .
[3] The subject of ss 3(1) (a) and 3(2)(a) is sue generis and specific to the legislation,
namely the Act. Non-compliance is not fatal nor final. Section 3(4) provides that if an
organ of state relies on a creditor’s failure to serve a notice in terms of subsec (2) (a),
the creditor may apply to a court having jurisdiction for condonation of such failure. 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.
If an application is granted in terms of para (b), the court may grant leave to institute the
legal proceedings in question, on such conditions regarding no tice to the organ of state
as the court may deem appropriate
[4] The primary purpose of the Act is that the organ of state be given notice at an
early stage to enable it to investigate the basis of the proposed claim. It is true that the
quality of the adjudi cation of cases is central to the rule of law. I noted in Edgar v MEC
could have acquired it by exercising reasonable care, unless the organ of state
wilfully prevented him or her or it from acquiring suc h 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 c ourt 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 cr editor; 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.’
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For Health, Free State (Provincial Department Of Health) :2
‘[5] The aim of the legislation is to “harmonise and create uniformity in respect of the provisions
of existing laws… with a uniform notice period which will apply in respect of the institution of
legal proceedings against certain organs of state for the recovery of a debt… ” It is not to curtail
access to courts when litigation is properly due . (Accentuation added)
[6] The history in cases of this nature has shown that ignorance of the law itself, the process
and apprehension to enter the arena and liti gate in courts, have a severe impact on real access
to justice. It is not just for the mere walking through the doors of court; it is to summon the
courage to litigate within the realm of dread for the justice system that ignorance, unfamiliarity
and inexp erience cause. Much consideration often goes into the decision to initiate action. It
might take one person a month to ponder the issue; it might take another longer. The reality of
funds and the procurement of evidence also lurk.
[7] Justice must howe ver be effective and possible for both parties and the State may not be
burdened with claims that are ancient to the extent that evidence had been compromised and
the veracity of the administration of justice derided. It is not the case here. ’
[5] In Madinda v Minister of Safety and Security ,3 the Supreme Court of Appeal ruled
that:
‘[8] 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 … I see no reason to place
a stricter construction on it in the present context .’ (Accentuation added)
[6] 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 org an of state wilfully prevented
him or her or it from acquiring such knowledge; and a debt referred to in s 2(2) (a), must
be regarded as having become due on the fixed date.4 It does , however , not end here.
Medical negligence cases are distinctive in nature .
2 Edgar v MEC For Health, Free State (Provincial Department of Health) (6087/2022) [2023] ZAFSHC
120 (19 April 2023).
3 Madinda v Minister of Safety and Security (153/2007) [2008] ZASCA 34 ; [2008] 3 All SA 143 (SCA) (28
March 2008) .
4 Section 3(3) (a) of the Act.
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[7] The Constitutional Court ruled in Links v Member of the Executive Council,
Department of Health, Northern Cape Province5 (Links ) that:
‘[42] There is a further problem with the submission in that it presupposes that any explanation
given to the applicant by the medical staff would have identified medical error as the actual or
even a potential cause of his injuries. It is not necessary for a party relying on prescription to
accept liability. To require knowledge of causative negligence for the test in section 12(3) to be
satisfied would set the bar too high. However, in cases of this type, involving professional
negligence, the party relyin g on prescription must at least show that the plaintiff was in
possession of sufficient facts to cause them on reasonable grounds to think that the injuries
were due to the fault of the medical staff. Until there are reasonable grounds for suspecting fault
so as to cause the plaintiff to seek further advice, the claimant cannot be said to have knowledge
of the facts from which the debt arises .’ (Accentuation added)
The above also applies to s 3( 3)(a) of the Act here.
Disputes
[8] The issues in dispute are:
(i) The date when the debt became due;
(ii) prescription;
(iii) whether good cause exists for the alleged failure by the creditor ;
(iv) whether the respondent was unreasonably prejudiced as result of the failure
alleged by the respondent ; and
(v) costs.
The common cause chronology of material events and facts
[9] The chronology of the events6 that are undisputed is significant and depicts the
factual context of the case . It resolves the issues and are:
7 August 2017 : The a pplicant was referred by Dr Claassens to Boitumelo Hospital since
she had a lump in her throat.
24 August 2017 : The a pplicant had an appointment at Boitumelo Hospital where she
was examined by a Dr Shange, and a date was set for the 27th of October 2017 o n which
the lump would be removed.
27 October 2017 : The a pplicant was admitted at Boitumelo Hospital.
5 Links v Member of the Executive Council, Department of Health, Northern Cape Province (CCT 29/15)
[2016] ZACC 10; 2016 (5) BCLR 656 (CC); 2016 (4) SA 41 4 (CC) (30 March 2016) .
6 Founding affidavit paras 5 and 6 on pp 6 to 12. Also see para 7.8.2 (7.8.2.1 to 7.8.2.7)
6
30 October 2017 : The operation was performed by Dr Brink to remove the lump.
1 November 2017 : The complainant was discharged from hospital.
15 November 2 017: On or about this date the applicant returned to Boitumelo Hospital
and informed Dr Shange that her throat was constantly sore and her voice ‘was gone’.
She was informed that her thyroid was removed and samples were referred to the
laboratory for analy ses.
30 November 2017 : The applicant was informed that she had parathyroid cancer. Dr
Shange informed her so and also provided her with a letter addressed to her employer,
informing them of the diagnosis and suggesting early retirement due to her condition .
20 December 2017 : Dr Shange provided the applicant with a second letter for her
employer, informing them that she must be ‘medically boarded ’ due to the fact that she
had to attend oncology treatment and it may worsen her current situation.
21 February 2018 : The applicant attended an appointment with an oncologist, Dr
Rothman , at Boitumelo Hospital, which was arranged by Dr Sha nge. Dr Rothman took
blood -samples from her as he did not believe that she had cancer.
May 2018 : The applicant was informed by Dr Rothman that her blood results confirmed
that she did not have cancer.
29 June 2018 : The applicant was examined by another medical practitioner who
provided her with a letter to present to her employer, informing them that applicant
should not be medically boarded since it was a non -cancerous growth that ha d been
removed. She was then referred to an endocrinologist specialist physician.
5 September 2018 : The applicant was admitted to Waterfall City Private Hospital for
three days for a nother cancer examination. She was informed that her thyroid had been
removed unnecessarily and that she did not have cancer.
5 February 2019 : Applicant returned to Dr Shange, who in turn prov ided her ‘with forms
to complete in order to return to work’.
8 October 2019 : The applicant was informed by another medical practitioner that her
‘voice box’ ha d been damaged. As soon as she was informed of this , she arranged to
consult with attorneys.
18 October 2019 : The a pplicant met with her attorneys in order to discuss the merits of
the case. She was informed that they would be providing instructions to anot her attorney
to assist with this case.
28 November 2019 : The attorney advised that it would be necessary to obtain copies of
her hospital records in order to consider the treatment provided by the respondent. A
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proper analysis of the incident and the respo ndent's liability could not be undertaken
without the medical records . The attorney further advised that it would be necessary,
once the hospital records had been obtained, to instruct an expert in order to consider
whether the respondent had been negligen t in their treatment.
10 February 2020 : The attorney formally requested the hospital records from the
respondent by submitting a request for access to a record of a public body in terms of
the Promotion of Access to Information Act 2 of 2000 (PAIA).
June 2020: The respondent requested payment for the records, and payment was made
on or about 25 June 2020 . The records were however only provided in September 2020 .
Upon receipt of the medical records the attorney forwarded the records to an internal
consultant for the purposes of the consultant considering the records and establishing
whether the respondent was indeed negligent in their treatment.
9 March 2021 : The internal consultant provided the report wherein the opinion was
expressed that substandard care was rendered by the respondent and it was advised
that the matter be referred to an expert general surgeon for further comment.
12 March 2021 : The statutory notice was sent.
12 May 2021 : Summons was issued on the main claim which was duly served upon the
respondent on 12 May 2021 .
6 October 2021 : Respondent served their plea wherein they denied compliance with
Section 3(2) the Act as proper.
12 July 2022 : The application for condonation was filed and served .
The date when the debt became due and prescription
[10] It is crucial in terms of the Act to establish the date when the debt became due;
the ‘fixed date’ . The respondent maintains tha t it is on the date when the medical
procedure was performed. This was on 30 October 2017.7 The date was adapted by the
respondent to ‘15 November 2017 and 08 October 2019 respectively’.8
[11] The applicant , on the other hand, maintains that the debt became due when she
became aware that a cause of action existed, which was on 9 March 2021 . She was
provided with a report on this date wherein the opinion was expressed that substandard
7 The date of the operation . See head s of argument for the respondent para 4.1 and the plea of 6 October
2021 at para 1.6.
8 Para 16 of the answering affidavit.
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care was rendered by the respondent .
[12] Notice in terms of the Act was immediately issued and served on 12 March 2021
and not out of the time prescribed . Summon s was issued on the main claim , which was
duly served upon the respondent on 12 May 2021.
[13] It was prove n beyond any doubt that the cause of action was not established on
either 30 October 2017 or 15 November 2017 . The applicant did her due diligence to
prevent burdening the respondent with unsubstantiated litigation. In compliance with
Links and s 3 of the Act , she legally so, ascertained the veracity of her claim and only
received word of it on 9 March 2021. I am convinced that the date when the debt became
due, ex lege , is 9 March 2021 . The claim has not prescribed and the notice was not late.
[14] If I am mistaken and, in the alternative, the respondent turned on their original
plea and expressly stated that the applicant failed to satisfy the second and third
requirements of s 3(4) (b) of the Act.9
[15] The applicant was informed by a medical practitioner on 8 October 2019 that she
suffered damage as result of the medical procedure and she immediately , on 18 October
2019 , consulted her attorneys. If the court regards the date that the debt became due
as 8 October 2019 , condonation in terms of the Act must be considered .
[16] The respondent denie s liability for medical negligence . Relevant here is the
special plea of the respondent , which was filed and served on 6 October 2021 . However,
the core of the case for the respondent came to light in paras 13.2, 14, 16 and 17 of the
answering affidavit in casu .
[17] It is not th e case for the respondent in the answering affidavit , contrary t o the plea
of 6 October 2021, that the claim for damages has prescribed. What can be ascertained
from the papers is that there lies a complaint that the applicant dragged her feet in
bringing the current condonation application.10 The special plea was filed on 6 October
9 Para graph 14 of the answering affid avit.
10 Para graph 19.1 of the answering affidavit : ‘The applicant failed to deal with her failure to apply for
condonation after the plea was filed. The applicant therefor simply fails to deal with the undue delay.’ Also,
see para 14.1 of the answering affidavit.
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2021 and the condonation application only came to the fore on 12 July 2022;
approximately nine months later.11
[18] The arg ument does not assist the respondent. The reasonableness of the delay
must be measured in light of the circumstances of this case . The notice was served on
12 March 2021 and summons issued on 12 May 2021 . The special plea by the
respondent was delayed by five month s: 6 October 2021. The application for
condonation came on 12 July 2022 , about nine months later. The pot is calling the kettle
black ; both parties could have litigated faste r and might have just cause for the delay .
This brings issues of good cause and prejudice to the fore.
Whether good cause exists for the alleged failure by the creditor and the alleged
unreasonable prejudice suffered by the organ of state
[19] The gripe of the respondent is prejudice in that almost five years have lapsed
since the applicant’s operation on 30 October 201712 before this application was lodged.
According to the respondent several officials and employees of them who were
employed at the hospital are no longer within the D epartment : ‘The respondent cannot
state with certainty that it will, after all this time , be able to produce all relevant
witnesses.’13 The respondent does not state who the witnesses in question are why it
will not be possible to trac e them. The prejudice is thus vague. The fact remains that the
veracity of the adjudication of cases must be protected and time limits in civil litigation
serves a real purpose.
[20] The applicant wants for the court to order that:
‘1. The Applicant complied with the requirements of Section 3(2) of the Institution of Legal
Proceedings Against Certain Organs of State Act, 40 of 2002, having regard to the provisions
of Section 3(3)( a);
2. Alternatively, the Applicants' non -compliance with Section 3(1) of the Institution of Legal
Proceedings against Certain Organs of State Act, 40 of 2002, is hereby condoned;
3. The Respondent pay the costs of this application on an attorney and client scale.’14
11 Para graph 17.1 of the answering affidavi t.
12 The da te of 27 October 2017 averred is wrong since the medical procedure is trite to have been
performed on 30 October 2017 .
13 Para 21.1 of the answering affidavit.
14 Notice of motion filed on 12 July 2022.
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[21] Crucial is the proven case for the applicant in the founding affidavit that:
‘7.8.3 As I have already dealt with above, I only became aware of any possible negligence
once I was advised of my possible medical negligence claim in the alternative when my attorney
satisfied himself as to same having canvassed.
7.8.3.1 The delay was caused mainly due to the fact that I attended to numerous medical
treatments after my initial operation and only in October 2019 was, I informed that my voice box
has been damaged. A further delay was caused due to the fact that the Respondent did not
provide the requested records timeously. The further delay from date of receipt of plea was due
to the necessity and difficulty of arranging a consult between mys elf and my attorneys at an
earlier time. ’ (Accentuation added)
[22] Factually , the reality is that the applicant only established the veracity of the
cause of action on 9 March 2021 and the notice was filed on 12 March 2021. The notice
was thus not late.
[23] She was however advised of the damage on 8 October 2019. On this scenario ,
the filing of the notice was late. The application for condonation was filed on 22 July
2022 subsequent t o the plea of the respondent on 6 October 2021 . The nine months in
the delay to bring the condonation application is not unreasonable in the context of the
facts in casu . The respondent waited from May 2021 to October 2021 to file the special
plea against the alleged late filing of the notice ; this was a period of five months.
[24] The cause of action was not known to the applicant on the date of the operation
on 30 October 2017. This might be why the respondent did not r ely on prescription in
the answering affidavit. Counsel for both the parties did deal with the issue of
prescription , but it seems to have be en ex abundanti cautela . It was pleaded but is not
part and parcel of the case of the respondent in the answering affidavit.
[25] The respondent has not referred the court to real prejudice and the facts show
that a prospect of success exists in light of the careful manner in which the applicant
considered her case. The chronology of the events dictates that the delay to file the
notice was bona fide. The opinions of experts were obtained and the decision to insti tute
action was no t taken without due consideration. Good cause does exis t for the failure to
file the notice within six months after the 8th of October 2021 .
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[26] In conclusion, the claim is not prescribed, good cause exits for the delay and the
organ of state was not prejudiced.
Costs
[27] The issue of costs remains. Condonation is an indulgence by the cour t and has
been described as follows:
‘Where a litigant applies to court for condonation of non-compliance with the provisions of
statutes or the rules of court and for consequential relief, the general rule is that the applicant
should pay the costs of the application. . . . On occasion the court will make no order as to costs
where there is an application for condonation which is opposed . . . .’15
[28] Failure of the parties to negotiate the condonation is also important . In Willemse
v Minister for Health, Free State Province16 the court made no order as to costs and
noted that:
‘[34] Both parties are blameworthy for being embroiled in these proceedings including the
condonation application in the court a quo . The applicant failed to take the liberty of seeking the
respondent’s consent to condonation prior to launching the condonation application. Similarly,
the respondent vigorously opposed the condonation application and the appeal merely on the
basis of cost whereas it could have consented to the condonation and only opposed t he cost
issue. The opposition was unreasonable and unnecessary. ’
[29] Having regard to the above -mentioned factors, the following order is made:
1. The applicant complied with the requirements of s 3(2) (a) of the Institution of
Legal Proceedings Against Certain Organs of State Act 40 of 2002, having regard to
the provisions of s 3(3)( a);
2. In the alternative is c ondonation granted to the applicant in terms of section
3(4)( b) of the Legal Proceedings Against Certain Organs of the State Act 40 of 2002 for
failure to serve a notice in terms of s 3(2)(a).
3. No order is made as to costs.
________ ____
OPPERMAN J
15 AC Cilliers Law of Costs Service Issue 48 at 2 -67-2-68.
16 Willemse v Minister for Health, Free State Province (A17/2020) [2021] ZAFSHC 8 8 (21 January 2021) .
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Appearances
For the applicant : I Sander
Instructed by: VZLR Inc.
Pretoria
c/o Du Plooy Attor neys
Bloemfontein
For the respondent: T L Manye
Instructed by: State Attorney, Bloemfontein: Free State