IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - BHISHO)
CASE NO. 744/2020
In the matter between:
BONISANI NDZUNDZU Applicant
and
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH Respondent
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
COLLETT AJ
Introduction
[1] The applicant, an adult male, suffered a head injury after being as saulted with an axe
and attended at Grey Hospital on 25 November 2013 for treatment. He issued
summons against the respondent on 18 November 2020 alleging negligence.
[2] The respondent raised a special plea contending that there had been non -compliance
by the applicant with the requisite statutory notice in terms of Section 3(2)(a) of the
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002
(hereinafter referred to as ‘the Act’)
[3] The applicant now seeks condonation in terms of Section 3(4) of the Act . The
respondent opposes the application contending that the applicant has not demonstrated
‘good cause’, failed to make averments regarding prescription or that the respondent
would be unduly prejudiced.
Factual Matrix
[4] On 25 November 2018, the applicant attended Grey Hospital after an assault to his
head with an axe. He was allegedly treated and discharged. Thereafter, he noticed that
he was blind, consulted Dr Limbada and was admi tted to ICU at St Dominic’s
Hospital. Fragments of his skull were removed and blood clots drained. He was
absent from work for three months. The ensuing medical complications are alleged to
have arisen as a consequence of the respondent’s negligence.
[5] The applicant’s erstwhile attorney, T. Faku Attorneys (hereinafter referred to as
‘Faku’) issued summons against the respondent on 18 November 2020. The
respondent entering an appearance to defend on 20 June 2021. On 2 August 2022, the
respondent filed a special plea and plea over raising non-compliance with the Act.
[6] The applicant, as a layman, had instructed Faku having no knowledge as to whether
the statutory notice was ever sent to the respondent. He states that he was unable to
contact Faku or receive progress reports and accordingly instructed his present
attorneys who filed a notice of acting in May 2022. The applicant’s current attorneys
wrote to Faku, terminated his mandate and requested the applicant’s file, but it was
not forthcoming.
[7] Despite the respondent’s belated filing of a notice of opposition, the applicant’s
attorneys called on the state attorney to file a plea. On 3 August 2022 a special plea
and plea over was filed, raising non-compliance with section 3(2)(a) of the Act. In the
absence of the file from Faku, the present attorneys suspected the statutory
requirements might not have been met. On 2 September 2022 they addressed
correspondence to the respondent seeking condonation and acceptance of their letter
of demand. No agreement followed from the respondent.
[8] The respondent opposes condonation, alleging the applicant has not shown ‘ good
cause’, and that the applicant has neither alleged that the claim has not prescribed nor
that undue prejudice would not be suffered by the respondent.
Litigation context
[9] Section 3(2)(a) of the Act requires service on an organ of state within six months of a
debt becoming due. If an organ of state relies on non-compliance with section 3(2)(a),
then section 3(4) is triggered, permitting an application for condonation.
[10] The requirements for a condonation application are embodied in section 3(4)(b) and
(c) which reads as follows:
‘(b) The court may grant an application referred to in paragraph (a) if it is satisfied that –
(i) the debt had 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.
(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 my deem appropriate’
[11] The Constitutional Court in Minister of Police v Miya, 1 adopted the approach in City
of Tshwane Metropolitan Municipality v AfriForum and Another2 more particularly:
1 (1250/2022)[2024] ZASCA 71 (06 May 2024) para [1]
2 [2016] ZACC 19 para [18]
‘Our peculiarity as a nation impels us to remember always, that our Constitution and law
could never have been meant to facilitate the frustration of real justice and equity t hrough
technicalities. The kind of justice that our constitutional dispensation hold out to all our
people is substantive justice.’
[12] Although Miya concerned service upon the Minister and the interpretation of section
2(2) of the Act, its purposive approach is significant. Section 39(2) of the
Constitution3 enjoins the court to interpret legislation in a manner that promotes the
spirit, purport and objects of the Bill of Rights.
[13] Implicit in section 3(4) is the right of access to court as enshrined in section 34 of the
Constitution and requires a purpos ive interpretation. An unduly restrictive approach
inconsistent with our constitutional imperatives.
[14] While compliance with section 3(2) of the Act remains important, the merits are not
assessed on a balance of probabilities. The court must be ‘ satisfied’ that condonation
is justified on the facts and all three requirements as contained in section 3(4) have
been met. The court then exercises its discretion to condone following the usual
principles.4
[15] The first requirement of the three -pronged enquiry as contained in section 3(4), is
prescription which is essentially a question of fact relating to whether or not the debt
has been extinguished consequent upon the lapse of the three-year period.
[16] The second requirement is ‘ good cause’ for the delay. A reasonable explanation
must be given to allow the court to assess the delay holistically. Heher JA in Madinda
stated that:5
3 Act 108 of 1996
4 Madinda v Minister of Safety and Security (153/2007)[2008] ZASCA 34 (28 March 2008)
5 Madinda supra para 12
‘The court must decide whether the applicant has produced acceptable reasons for nullifying,
in whole, or at leas t substantially, any culpability on his or her part which attached to the
delay in serving the notice timeously.’ (my emphasis)
[17] Considerations of ‘good cause’ include fairness, prospects of success, reasons for the
delay, sufficiency of explanation, bona fides of the applicant and any contribution to
the delay by the applicant or others. 6 No fixed formula for ‘good cause’ applies and
each case turns on its merits. Moreover, prospects of success remain essential and are
balanced with the cause of delay.
[18] The purpose of the condonation envisaged in section 3(4) of the Act is to permit the
litigation despite non -compliance with the peremptory provisions of section 3(2)(a).
This is consistent with a purposive approach which is constitutionally alig ned with
section 34 of the Constitution. Both defective and absent notices entitle a litigant to
seek condonation.7
[19] The third prong of the enquiry is for the applicant to demonstrate that the respondent
has not been unduly prejudiced by the delay. This calls for a factual, common -sense
inquiry as realistically, the respondent is best placed to show prejudice. As postul ated
in Madinda8:
‘Although the onus is on an applicant to bring the application within the terms of the statute,
a court should be slow to assume prejudice for which the respondent itself does not lay a
basis.’
Analysis
[20] The respondent submitted that the applicant did not assert that the claim had not
prescribed. This, however, is a non -issue. Even if the debt arose on 25 November
2018, it is common cause that summons was served on 20 January 2020, well within
6 Madinda supra para 10
7 Minister of Safety and Security v De Witt 2009(1) SA 457, para [18]
8 Madinda para 21
the three-year prescription period. Accordingly, the court has a discretion to condone
the defective service of the statutory notice.
[21] On the facts, there is a two -year gap between attendance at Grey Hospital and service
of summons. 9 At worst, the claim arose on 27 Novembe r 2018, with six months
running thereafter. This leaves an 18 -month period potentially unaccounted for. 10
Whilst the applicant did not provide the exact date of consulting Faku or of becoming
aware of a triable claim, this should not disqualify his bid for condonation. The facts
reveal that he was hospitalized in the ICU at St Dominic’s Hospital after his initial
admission at the respondent’s facility and was absent from work for three months.
[22] It is clear that the applicant sought legal advice durin g the intervening period and
relied upon Faku to pursue his matter in accordance with the law. The particulars of
claim reference compliance with the provisions of section 3 of the Act and embody
the words ‘ despite demand’.11 Significantly, the plea den ies compliance but is silent
on the specifics.
[23] Despite service of the summons on 18 November 2020, the respondent only filed its
notice of opposition on 21 June 2021, some seven months later. Its plea followed on
22 August 2022, being 22 months after receipt of the summons, and then only after
being prompted by a notice of bar from the applicant’s current attorney. This pattern
reveals Faku’s recalcitrance as he neither acted when the notice of opposition was
delayed nor served a timely notice of bar regarding the plea. The applicant was
therefore plainly a victim of the dilatory conduct of both Faku and the respondent.
Faku’s inaction further supports the applicant’s version that he received no progress
reports and was unable to reach Faku telephonically. As a layman, the applicant
reasonably entrusted the conduct of his case to Faku.
9 25 November 2018 being the date of admission to Grey Hospital and the issue of summons on 20 November
2020
10 Post the 6 months within which proceedings should be instituted
11 Para 14 and 15 of particulars of claim
[24] Upon receiving instructions from applicant in May 2022, the applicant’s present
attorneys acted without delay. They served a notice of bar and sought to address ‘ the
unknown reason’ for non-compliance with the Act raised in the special plea. In the
correspondence dated 2 September 2022, they explained the absence of the
applicant’s file and the inability to contact his previous attorney. They requested the
respondent’s agreement to condonation, but no reply was forth coming, necessitating
this application.
[25] It cannot be said that the applicant, as a lay person, showed a disinterest in his matter.
He consulted Faku leading to summons being served on the respondent. Thereafter,
both Faku and the respondent were dilatory. The applicant then instructed new
attorneys, who pursued the matter albeit without the benefit of a file.
[26] As submitted by applicant’s counsel, the respondent’s plea is sufficiently detailed to
indicate access to the hospital file of the a pplicant. In assessing the prospects of
success, the respondent who, whilst denying negligence, admits the admission and
treatment. It would be palpably unfair to deny the applicant a trial on the merits.
[27] A court is to be satisfied that the req uirements of section 3(4)(b) are met, applying an
overall impression and fair assessment of the facts. Proof on a balance of
probabilities is not required. The applicant has produced acceptable reasons,
supported by the facts as aforementioned, to substa ntially negate culpability for the
delay in serving the notice timeously or at all. This court is satisfied that fairness and
the consideration of section 34 of the Constitution warrant the exercise of discretion
in favour of the applicant.
[28] The respondent raises no tangible prejudice. From the plea and answering affidavit,
it appears that the respondent has information necessary to mount a defence to the
applicant’s claim. Any claim of prejudice, is general and unspecified. In the absence
of actual prejudice, the respondent cannot be said to be unreasonably prejudiced by
the applicant’s failure.
[29] In considering and assessing the requirements for condonation in accordance with
established principles against the explained and unexplained fac ts, the delays cannot
fairly be attributed to the applicant or equated with disinterest . The applicant has, at
least substantially, demonstrated a lack of culpability on his part.
[30] Accordingly, the following order is issued:
1. Condonation is granted fo r the applicant’s failure to serve the notice
contemplated in section 3(1)(a) of the Institution of Legal Proceeding against
Certain Organs of State Act 40 of 2002 (‘the Act’) within the period laid down
in section 3(2)(a) of the Act;
2. The costs are in the cause.
____________________________
SA COLLETT
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: Mr C. Wood
Instructed by: Niehaus McMahon Inc
For the Respondent: Mr A. D. Maduma
Instructed by: State Attorney
Date of hearing: 11 September 2025
Date of judgment: 23 September 2025