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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: BISHO ]
Case No: 459/2022
In the matter between:
SINOXOLO MNTUPI APPLICANT
AND
MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH, EASTERN CAPE PROVINCE RESPONDENT
JUDGEMENT
MTSHABE AJ
[1] The Applicant, Sinoxolo Mntupi is an adult, unmarried female person who was
born 13 July 1991 and currently resides at N o. 4[...], Phase 3 Scenery Park , East
London, Eastern Cape Province.
[2] On 3 August 2022, the Applicant issued summons against the Respondent,
claiming an amount of R5 000 000-00 (five million rands), for alleged negligence of
her treatment at Cecilia Makhiwane Hospital.
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[3] On 22 August 2022 , the Applicant delivered a Notice in Terms of Rule 41A in the
State Attorney’s office at East London.
[4] Rule 41A deals with mediation as a dispute resolution mechanism . Clause 2(a)
reads as follows :
“In every new action or application proceeding, the Plaintiff or Applicant shall,
together with summons or combined summons or notice of motion, serve on
each Defendant or Respondent a notice indicating whether such Plaintiff or
Applicant agrees to or oppose s referral of the dispute to mediation.” And 2(b)
reads as follows : “And the Defendant or Respondent shall, when delivering a
notice intention to defend or a notice of intention to oppose, or at any time
thereafter , but not later than the delivery of plea or answering affidavit, serve
on each Plaintiff or Applicant or the Appl icant’s or Plaintiff’s attorneys, a notice
indicating whether such Defendant or Respondent agrees to or opposes
referral of the dispute to mediation.”
[5] A month after the Respondent was served with summons, delivered a notice of
appearance to defend on 7 September 2022 . Note that the summons as I have
indicated above were served 3rd August 2022.
[6] The notice of appearance to defend, dated 6 September 2022 and served upon
the Applicant on 7 September 2022 emanates from the office of the State Attorney,
East London, C/ O Shared Legal Services, Office of the Premier, King Williams Town .
[7] I must also mention that on 10 August 2022 the combined summons Notice in
Terms of rule 41A were served at the office of MEC for Health, Eastern Cape at
Gqukumbana B uilding, Independence Avenue, Bhisho. However, the main
documents (summons, particulars of claim and rule 41A notice were served on 22
August 2022 in the office of th e State Attorney East London1.
1 See Returns of services that attached to document headed essential index
[8] On or about 20 October 2022, the Respondent delivered her Special Plea and
Plea Over. The Special Plea is directed to the non -compliance with Section 2 of the
State Liability Act 20 of 1957.
[9] Section (2) of the State Liability Act, provides as follows :
‘’The Plaintiff o r Applicant, as the case maybe or his or her Legal
Representative must, within 7 days after a summons or notice instituting
proceedings and which the executive authority of a dep artment is cited as
nominal defendant or respondent has been issued, serve a copy of that
summons or notice on the State A ttorney .”
[10] In paragraph 2 of the Respondent’s Special Plea following is stated : ‘’The
Plaintiff has not complied with Section 2 of the State Liability Act 20 of 1957 in that
prior instituting (my underlings) these proceedings no copy of the summons was
issued to the office of State Attorney operating within the area of jurisdiction of th e
court which the process was issued. My reading of Secti on 2 of the State Liability
Act, in particular sub section 2 is that it does not say “prior” to the instituting the
proceedings. The subsection states that the Plaintiff or Applicant as the case may
be, or his or her Legal representative must, within 7 days after a summons or notice
instituting proceedings and which the executive authority of a department is cited as
nominal Defendant o r Respondent has been issued served a copy of that summons
or notice on the office of the State Attorney. Further, unless I have a wrong Act of
subs ection 2 of the Sate Liability Act does not say within 5 days after service of the
process serve a copy of that process to the office of the State Attorney operating
within the area of jurisdiction of the court from which the process was issued.
[11] Section 2(2) of the State Liability Act does not state that a copy of the process
must be served on the office of the State Attorney operating within the area of
jurisdiction of the court from which the process was issued. The Act state s that a
copy of that summons or notice must be served on the State Attorney. The words
“operating within the area of jurisdiction of the court the process was issued” have
been left out subsection 2 of the State Liability Act.
[12] The Applicant having been served with the Special Plea of non -compliance with
Section 2 of the Sate Liability Act, brought an application to this Court for an order on
the following terms :
12.1 “Condoning the non -compliance with Section 2 of Act 20 of 1957.
12.2 Leave for Plaintiff to pursue the civil action in respect of her claim for
medical negligence against the Respondent to finality.
12.3 Costs in the event of that application is opposed.”
[13] Let just mention that the Applicant brought an application with the heading
NOTICE OF MOTION which is like Form 2(a) of the Uniform Rules of Court . When
proceedings have already started and are pending in Court, as it is the position in
this case, because summons have already been issued and plea has been
delivered, the proper approach in my view is not to bring an application in terms of
Form 2(a) with a Notice of Motion , rather to bring an application in terms of Rule
6(11) which reads as follows :
“6(11) Notwithstanding the aforegoing subrules, interlocutory and other
applications incidental to pending proceedings maybe be brought on notice
supported by such affidavits as the case may require and set down at the time
assigned by the registrar or as directed by a Judge.’’2
The use of Notice of Motion in application proceedings is covered in rule 6(1) read
with rule 6(5). In fact, I can mention that Counsel for the Applicant capture this in her
heads that the application is an interlocutory application.
[14] I now turn to the applicatio n before me. The return of service dated 10 August
2022, informs that the summons and notice in terms of rule 41A were served upon
the Respondent (MEC for Department of Health) in Bhisho. The second return of
service dated 23 August 2022, informs that the combined summons and particulars
of claim together with the notice in terms of rule 41A were served on 22 August 2022
2 Erasmus Superior Court Practice rule 6(11)
to the office of the State Attorney, N o. 17 Fleet Street, Old Spoornet Building, East
London. From 10 August 2022 to 22 August 2022, it is 8 (eight) court days.
[15] The Special Plea of the Respondent/Defendant reads as follows :
“Non -compliance with Section 2 of the State Liability Act 20 of 1957 .
1. In terms of Section 2 of the State of Liability Act, 1957 (20 of 1957) (the State
Liability Act), the Plaintiff or his or her legal representative must -
1.1 After any court process instituting proceedings and in which the
executive authority of a depart ment is cited as nominal defendant has
been issued, served a copy of that process on the head of the department
concerned at the Head Office of the Department and
1.2 Within 5 days after service of the process has contemplated in paragraph
(a), serve a co py of that process on the office of the State Attorney
operating within the area of jurisdiction of the court from which the
process was issued .
1.3 The Plaintiff has not complied with Section 2 of the State Liability Act 20 of
1957 in that prior instituting these proceedings no copy of the summons
was issued to the office of the Ste Attorney operating within the area of
jurisdiction of the court which the process was issued.
1.4 The Plaintiff’s claim is thus bad in law for non -compliance with Stat e
Liability Act 20 of 1957 and barred f rom proceeding against the
Defendant.”
[16] The complaint by the Respondent/Defendant in the Special Plea is that no copy
of the summons was served to the office of the St ate Attorney prior the instituting of
the proc eedings. My view is that the St ate Liability Act Section (2) does not say that
the copy of the summons must be issued to the office of the State Attorney prior the
institution of the proceedings .
[17] The summons was served in the office of the State Attorney, East London. In
the Special Plea the Respon dent/Defendant has not stated which Office State
Attorney the summons ought to have been served at. I must also mention that the
Defendant in her Notice of appearance to Defend writes her address as the State
Attorney , Defendant’s Attorneys , Old Spoornet Building, 17 Fleet Street, East
London C/ O Shared Legal Services , Office of the Premier, 32 Alexander Road, King
Williams town .
[18] The issue for determination by this court is whether the Applicant should be
condoned for non -compliance with Sect ion 2 of the Act 20 of 1957 . Section 2 of the
State Liability Act as I have indicated above has two subsections . Subsection 1
informs that in any action or other proceedings instituted by virtue of provisions of
Section 1 the executive authorit y of the Def endant concerned must be cited as
nominal Defendant or Respondent . To this extent the executive authority in the Act is
defined, in relation to a Pro vincial Department, to mean the Member of the Executive
Council of the Province who is accountable to the Provincial Legislature for tha t
Department. In this case, the Applicant has correctly cited the M ember of the
Executive C ouncil responsible for Department of Health in the Eastern Cap e
Province. Accordingly, I am of the view that the Applicant has complied with
subsection 2(1) of the State Liability Act.
[19] Section 2(2) provides for a Plaintiff or Applicant or his or her legal
representatives must within 7 days after a summons or not ice instituting
proceedings and in which the executive authority of a Department is sited as nominal
Defendant or Respondent has been issued, serve a copy of that summons on notice
on the State Attorney. As I have indicated above, is view that the summons was
served at the office of the State Attorney.
[20] The Respondent in the Special Plea refers to 5 days . It is not clear to where did
the Respondent get 5 days for the service of the summons . As I have indicated
above, the State Liability Act provides that the summons must be served within 7
days and in this case the summons w as served on the 8th day. That being the case,
the Applicant would have been in out of service by 1 day .
[21] I picked from the Counsel for the Respondent that the non -compliance by the
Applicant is that the summons and particulars of claim were not served upon the
Office of the State Attorney. It is not the Respondent’s case that the non -compliance
by the Applicant relates to 7 days of service of summons within 7 days and that they
were served after those 7 days. Respondent’s case is clear, that is, summons was
not served.
[22] As I have indicated above, I am of the view that the summons when they were
served at the office of the State Attorney, East London to me that is the office of the
State Attorney for the Respondent.
[23] In any event, even if I am wrong in my view that the summons and particulars of
claim were served upon the office of the State Attorney , East London, there is no
prejudice that has been suffered by the Respondent for the services of the summons
in the office of the State Attorney, East London.3 In the case Molokwane supra , the
court stated the following with regards to Section 22(2) of the State Liability Act :
“With these imperative iterations in mind, I t urn to s 2(2) of the State Liability
Act. Its purpose, especial ly the requirement that a summons must be served
on the State Attorney within 7 days after it was issued, is clearly to ensure that
the relevant executive authority (the Minster in this case) is afforde d
effectively legal representation in the matter by the State Attorney. If the State
Attorney provides such legal representation, in any manner whatsoever,
despite it not having been served by sheriff within seven days of the process
commencing such proceedings, this purpose would have been served. That
would also be the position where, as in the present case, there was no service
on the State Attorney at all. In other words, it is not so much about how the
State Attorney obtained the knowledge the process commencing proceedings,
as the representation of the party in the legal proceedings itself .”
In this case the State Attorney even if the service was not effected at the office of the
Shared Legal Services in King Williams Town , State Attorney filed a notice of
appearance to defend after a month it was served with the summons in the office of
the State Attorney, East London. The purpose of the Act in my view was a chieved
because the Respondent (MEC, for Health) was represented by t he office of the
State Attorney.
3 Minister of Police and others v Samuel Molokwane [2022] ZASCA 11 (15 July 2022)
[24] I must mention that the State Liability Act does not provide for condonation on
non-compliance with Section 2(2) of the State Liability Act. When a special plea of
non-compliance has been raised, it is my view that special should dealt with as one
would deal with a Special Plea of prescription. If I condoned non -compliance with
Section 2 (2) of the State Liability Act by the Applicant, I am left with one question in
mind that is does that dismiss the special plea or upheld it . The answer is nowhere to
be found in both propositions because before me I am not called upon to determine
the issue of the Special Plea. If I was called to decide it, I would have come to a
different conclu sion. As I have indicated above there is no prejudice that has been
suffered by the respondent for non -compliance with section 2 of the Act. The critical
point is that the MEC for Health is represented by the State Attorney in the action, by
entering appea rance to defend the action, by filing a plea. To me the purpose of the
section has been achieved. The argument by the Respondent that the applicant
should be barred from proceeding against the defendant/respondent is simply
untenable.
[25] I must mention t hat there is no provision in the State Liability Act to the effect
that if section 2(2) is not complied with, the legal proceedings must be dismissed. If
there has been non -compliance, what the Court would or should be called upon to
determine is whether t here was substantial compliance in the sense that the purpose
of section 2(2) has been achieved, and whether there is any prejudice to the
defendant.
[26] My view is that the purpose of section 2(2) of the State Liability Act, especially
the requirement th at summons must be served on the State Attorney within seven
days after it was issued, is clearly to ensure that the relevant “executive authority”
(MEC for Health in this case) is afforded effective legal representation in the matter
by the State Attorney . If the State Attorney provides such legal representation, in any
manner whatsoever despite it not having been served by the sheriff within seven
days of the process commencing such proceedings, this purpose would have been
served. My view is that in this case that purpose has been achieved in this case.
[27] Lastly, both counsel in their heads of arguments correctly referred me to a case
of Madinda v Minister of Safety and security4. They were correct to refer me to that
case, however the case Madinda deals with non -compliance with Section 3
requirements of Institution of Legal Proceedings Against Certain Organs of State, Act
40 of 2002. The reason for condonation in terms of Act 40 of 2002 is that the Act
provides in Section 3(4) that if organ of State relies in a creditor’s failure to a serve
the notice in terms of sub -section 2(a), the creditor may apply to a court having
jurisdiction for condonation of such a failure. Then s ection 3(4)(b) circumscribes a
court’s power to grant condonation by requiring that it be satisfied that :
1. The debt has not been extinguished by prescriptions.
2. Good cause exists for the failure by the creditor, ie to serve the statutory
notice according to Section 3(2)(a) or to serve a notice that complies with
the prescrip tions of Section 3(2)(b); and
3. The organ of state unreasonable prejudice by the failure.
4. Accordingly, my view is that the case of Madinda is no t applicable to non -
compliance of Section 2 (2) of the State Liability Act.
[28] Further, during the argument Couns el for the Respondent gave me the case of
Siphokazi Nombewu obo Indiphile Nombewu v MEC for Department of Health5 which
I am of the view that it is distinguishable from the one before me. Th at case also
deals with non -compliance with Section 3(2) of Act 4 0 of 2002 . It doesn’t not deal
with non -compliance with Section 2 (2) of State Liability Act that case is correctly
decided on the cause of action based on non-compliance with Act 40 of 2002.
[29] Having considered the submissions made by the Counsel and read the papers, I
cannot find that the applicant has not complied with the State Liability Act more so
that there is no prejudice to be suffered by the respondent, even if there was non -
compliance.
[30] Accordingly, I make the following order:
4 2008 (4) SA 312 SCA
5 No. 170/2021 Eastern Cape Division, Bisho judgment delivered on 30 September 2024.
1. The applicant is condoned for the non -compliance with section 2 of the
State Liability Act, No. 20 of 1957.
2. The applicant is granted leave to pursue the civil action in respect of her
claim for medical negligence against the respondent to finality.
3. Each party will pay its own costs.
___________________________
N.R. MTSHABE
ACTING JUDGE OF THE HIGH COURT
Counsel for Applicant : A. Teko
Instructed by : Magqabi Seth Zitha Attorneys
East London
Counsel for Respondent : S.Z. Mlalandle
Instructed by : State Attorney
East London
Date he ard : 13 February 2025
Date delivered : 13 May 2025