THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 054/2024

In the matter between:
JANSEN VAN VUUREN,
DILLON WESLEY APPELLANT

and

THE MEMBER OF THE EXECUTIVE
COUNCIL FOR HEALTH, GAUTENG
PROVINCE RESPONDENT

Neutral citation: Van Vuuren v Mec for Health , Gauteng Province (054/2024)
[2025] ZASCA 76 (4 June 2025 )
Coram: MOKGOHLOA, MATOJANE , WEINER , and SMITH JJA and
VALLY AJA
Heard : 13 May 2025
Delivered : This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The time and date for hand -down is deemed to
be 11h00 on 4 June 2025.

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Summary: Prescription – Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002 (the Act) – condonation for late filing of the
statutory notice in terms of s 3 of the Act.
________________________________________________________________

ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court , Pretoria (Pretorious,
Collis and Phahlane JJ, sitting as a court of appeal ):
1 The appeal is dismissed.
2 Each party is to pay their own costs .

________________________________________________________________

JUDGMENT

________________________________________________________________

Weiner JA (Mokgohloa, Matojane and Smith JJA and Vally AJA
concurring ):

[1] This appeal concerns an application for condonation for the late service of
the statutory notice in terms of s 3 of the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002 (the Act).

[2] The appellant had instituted action against the respondent for loss of
support and emotional shock arising from the death of his mother (the deceased)
on 22 December 2011.The appellant alleged that the deceased die d as a result of
negligence of the respondent’s medical and nursing staff (the staff) at the
Charlotte Maxeke, Johannesburg Academic Hospital (the hospital). The
respondent was sued in her representative capacity, as being the entity responsible
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for the claims arising against the hospital , the latter being an institution
established, funded and managed by the respondent.

[3] The appellant alleged in his particulars of claim that the deceased was
admitted to the hospital in August 2011 to undergo surgery. After surgery, s he
experienced partial paralysis (allegedly from the spinal anaesthetic ) and later
developed severe pressure sores and sepsis . It was submitted that in breach of
their duty of care, the staff was negligent in various respects by, inter alia , failing
to ensure that the deceased was properly nursed, provided with appropriate
pressure relief measures for the pressu re sores and treated in accordance with the
protocol for immobile diabetic patients. She thus developed the pressure sores
and sepsis, which the appellant alleged, ultimately caused her death.

[4] As the appellant instituted action against the respondent, compliance with
s 3 of the Act was required. Section 3 , in relevant part s, provides:
‘(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
(b) intention to institute the legal proceedings in question . . .’
(c) . . . .
(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
. . . .
(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
reasonable care, unless the organ of state willfully prevented him or her or it from acquiring
such knowledge . . .’

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[5] Notice was given to the respondent in terms of s 3 of the Act on 31 March
2017. In his particulars of claim, the appellant claimed compliance with the Act .
He also stated that insofar as the plaintiff may not have complied strictly with the
Act and in the event that the defendant fails to condone any non -compliance with
the Act, the plaintiff will apply for condonation in terms of s 3(4)(b) of the Act.
The relevant parts of s 3(4) of the Act provides:
‘(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.
. . . .’

[6] The respondent filed two special plea s, firstly that the debt relied upon by
the appellant became due on the date of the deceased’s death , on 22 December
2011 , and he was therefore required to give notice in terms of the section within
six months of the debt having become due. The respondent therefore asserted that
the appellant was debarred from proceeding with his claim, until condonation was
granted.

[7] In its second special plea , the respondent asserted that the appellant’ s claim
had prescribed. The appellant turned 18 years of age on 9 March 2015. In terms
of s 11 (d) of the Prescription Act 68 of 1969 (the Prescription Act), the normal
period of prescription was three years from the date that the debt became due . As
the appellant was a minor at the time , completion of prescription was delayed , in
terms of s 13(1) (a) and (i) of the Prescription Act , by one year. These sections
provide that:
‘13 Completion of prescription delayed in certain circumstances
(1) If-
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(a) the creditor is a minor or is a person with a mental or intellectual disability, disorder or
incapacity, or is affected by any other factor that the court deems appropriate with regard to
any offence referred to in section 12 (4), or is a person under c uratorship or is prevented by
superior force including any law or any order of court from interrupting the running of
prescription as contemplated in section 15 (1); or
. . . .
(i) the relevant period of prescription would, but for the provisions of this subsection, be
completed before or on, or within one year after, the day on which the relevant impediment
referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) has ceased to exist, the period of
prescription shall not be completed before a year has elapsed after the day referred to in
paragraph (i).’

[8] Thus, the respondent averred that the appellant’s claim prescribed on
8 March 2016. The appellant replicated to both special pleas alleging that he had
complied with s 3(1) (a) of the Act alternatively, if it was not strict compliance,
condonation would be sought.

[9] The appellant claimed that the debt only became due on 28 November
2016, when he consulted with an attorney who informed him that his claim lay
against the respondent and not the hospital , as the appellant had previously
believed. Thus, it was only on this date that the debtor was identified, and the
debt became due. The statutory notice was served on 31 March 2017, within the
six-month period provided for in the Act. And , as a minor , his claim would only
prescribe one year after he obtains majority . Summons was served on 1 March
2018, within the one-year period.

[10] The appellant, believing it was necessary, applied for condonation for the
late filing of the s 3(1) (a) notice. Both the Gauteng Division of the High Court ,
Pretoria (the high court) and the full court of such division dismissed the
application for condonation . The high court found that the appellant only became
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aware of the identity of the debtor on 28 November 2016 but still dismissed the
application for condonation. The full court found that the appellant had been
aware of the identity of the debtor from December 2011. Both the high court and
the full court took into account the knowledge that the appellant’s father an d uncle
could have acquired within three years of the date of the deceased’s death. But
this knowledge cannot be imputed to the appellant. Special leave to appeal was
granted by this Court

[11] On his own case, the appellant alleged that he had complied with s 3(1) (a)
of the Act. He explained the steps that he (and his father and uncle) had taken to
bring the claim before the court. At all times prior to 28 November 2016, the
appellant had thought that his claim lay against the hospital. He was only 14 years
of age when the deceased died and could therefore n ot have been expected to
know the requirements of litigating against the respondent as the entity that
administered the hospital. Over the pe riod between the deceased’s death and the
date when he ascertained who the debtor was, his family had attempted to find
legal assistance, which was refused. It was only after he attained majority and
when he consulted with new attorney s, Mr Kanarak and Mr Phillips , on
28 November 2016 , that he was informed of the identity of the debtor. He cited
s 12 of the Prescription Act, which states that prescription commences when the
debt is due and that a debt is not due until the creditor has knowledge of the
debtor ’s identity and the facts giving rise to the debt or could have acquired such
knowledge with reasonable care.

[12] In my view, on the appellant’s own case, the application for condonation
was unnecessary, and the appeal cannot succeed . It is not necessary for this Court
to decide on the issue of whether the appellant’s claim has prescribed. This is a
matter for the trial court hearing the special plea.

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[13] There are two further applications that were referred to by the appellant.
Firstly , the appellant launched an application to introduce new evidence on
appeal. This evidence demonstrated, so the appellant argued, that the appellant
acted reasonably and only became aware of the identity of the debtor on
28 November 2016. Most of these documents had been discovered by the
appellant and could add nothing to his argument in this Court. The appellant also
filed an application to amend his notice of motion. This w as to introduce an
alternative form of relief , ie that this C ourt should confirm that the s 3 notice was
filed timeously. This amendment was only sought in this Court. As it was not
dealt with in the proceedings before the high court and the full court , it cannot be
entertained in this Court on appeal.

[14] In regard to costs, the respondent submitted that if the appeal is dismissed,
costs should follow the result. In my discretion, I disagree with this view. The
decision that this Court arrives at is based on the appellant’s own case. It is not
based upon the respondent’s submissions in this Court. It was unnecessary to file
a 73 page answering affidavit ( excluding annexures) and it would be inequitable
for the appellant to bear the costs of the appeal.

[15] The following order is granted:
1 The appeal is dismissed .
2 Each party is to pay their own costs.







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_______________________
S E WEINER
JUDGE OF APPEAL
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Appearances

For the appellant: W Munro SC
Instructed by: Adams & Adams , Pretoria
Honey & Partners Inc, Bloemfontein

For the respondent : M Barnard with M Mokwena
Instructed by: The State Attorney , Pretoria
The State Attorney , Bloemfontein .