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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2015 -72110
(1) REPORTABLE: YES/NO
(2)OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 14 April 2026
SIGNATURE
In the matter between:
T[...]: M[...] I[...] APPLICANT
obo B[...] K[...] T[...]
and
THE MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH OF THE LIMPOPO PROVINCIAL GOVERNMENT RESPONDENT
JUDGMENT
Raubenheimer AJ:
Introduction
[1] This matter concerns an interlocutory application for condonation brought by the
Applicant, acting in her representative capacity as the natural guardian and mother
of her minor child, the minor. The Respondent is the Member of the Executive
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Council for Health, Limpopo Province (the "Respondent" or "MEC") cited in his
official capacity as the authority responsible for the public health facilities where the
minor received medical treatment.
[2] The current proceedings arise from a medical negligence claim by the Applicant
against the Respondent as a result of birth -related injuries sustained by the minor at
the Dilokong Hospital in August 2012. The Applicant alleges that the medical staff
acted negligently during the labour and delivery process, resulting in permanent
neurological impairment to the minor.
[3] In the application brought in terms of Section 3(4) of the Institution of Legal
Proceedings against Certain Organs of State Act 1 ("the Act") the Applicant seeks the
following primary relief:
1. A declaratory order that the notice served on the Respondent amounts to
substantial compliance with the requirements of Section 3(2) of the Act;
2. In the alternative, should the Court find that the notice was non -compliant
or out of time, an order condoning the failure to serve a timeous and
technically correct notice upon the Head of the Department, as required by
Section 4(1) of the Act;
3. An order directing that the main action for damages may proceed to trial.
[4] The Respondent opposes the application on the basis that there was non -
compliance with the statutory notice period prescribed by the Act. The Respondent
further argues that this non -compliance has caused prejudice to the Department’s
ability to mount a substantive defence. The Respondent challenges the Applicant’s
reliance on the date of "discovery" of the injury’s cause, contending that the debt
became due upon the birth of the child in 2012.
Factual Background
[6] The origin of the litigation is located in the medical care provided to the Applicant
and her minor child at Dilokong Hospital in Limpopo Province to which the Applicant
was admitted to the hospital in labour on 6 August 2012. The Applicant contends that
was admitted to the hospital in labour on 6 August 2012. The Applicant contends that
the medical staff failed to monitor the fetal heart rate appropriately, leading to a state
of prolonged fetal distress.
1 Act 40 of 2002
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[7] After prolonged labour the baby was delivered by means of an emergency
Caesarean section and on delivery exhibited signs of severe birth asphyxia and
respiratory depression, necessitating immediate resuscitation and subsequent
transfer to the neonatal intensive care unit. For several years thereafter, the minor
suffered from developmental delays and neurological deficits. The root cause of
these delays and deficits remained unknown to the Applicant as she was never
advised of any potential medical error by the attending hospital staff.
[8] The Applicant became aware of the potential negligence in early 2015 after a
consultation with medical professionals due to the minor's deteriorating health. On 16
April 2015, the Applicant obtained an MRI report which provided a clinical
explanation for the minor’s condition, specifically identifying injuries consistent with
hypoxic-ischemic encephalopathy due to possible substandard obstetric
management.
[9] This discovery led the Applicant to seek legal assistance culminating in the
issuing of a summons on 15 October 2015 in which damages arising from the
alleged medical negligence was claimed. At the time of issuing the summons the
Applicant believed that the necessary notice to the organ of state had been satisfied
through the correspondence exchanged between her legal representatives and the
office of the MEC.
[10] The Respondent entered an appearance to defend the action on 10 November
2015 and on 14 February 2017 served a Special Plea challenging the court’s
jurisdiction on the basis that the Applicant had failed to comply with the notice
provisions stipulated in Section 3(2) of the Act
[12] The protracted delay between the filing of the Special Plea and the current
application for condonation is a point of significant contention. The Applicant
maintains that her financial circumstances and the complexity of accessing expert
medical-legal reports contributed to the delay in launching this formal application,
medical-legal reports contributed to the delay in launching this formal application,
while the Respondent maintains that this delay is inexcusable and has compromised
its position in the litigation.
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The Legal Framework
[13] The resolution of this application for condonation is governed by the provisions
of the Act of which the legislative purpose is to provide a uniform legal framework for
the institution of legal proceedings against organs of state, while balancing the
state's interest in receiving notice with the constitutional right of access to courts.
Statutory Notice Requirements
[14] Section 3(2)(a) of the Act provides that no legal proceedings for the recovery of
a debt may be instituted against an organ of state unless the creditor has notified the
organ of state in writing of their intention to institute such proceedings within six
months from the date on which the debt became due.
Condonation under Section 3(4)
[15] Where a creditor fails to comply with the notice period, Section 3(4)(b)
empowers this Court to grant condonation if satisfied that he debt has not been
extinguished by prescription, good cause has been shown for the failure to serve the
notice and that the organ of state was not unreasonably prejudiced by the failure.
The Discovery Doctrine (*Links v MEC for Health*)
[16] In Links v MEC for Health, Northern Cape Province 2, the Constitutional Court
held that in medical negligence matters a debt does not necessarily become due
when the injury occurs, but rather when the creditor has knowledge of the facts from
which the debt arises. Such knowledge include that the harm sustained was the
result of wrongful conduct by the medical staff. The effect is that the six-month notice
period only commences once a plaintiff, acting with reasonable diligence, acquires
the requisite knowledge to institute action.
Determining 'Good Cause'
[17] The concept of "good cause" was elaborated upon in Madinda v Minister of
Safety and Security3 where the court held that this requirement constitutes a flexible
standard entailing a consideration of all relevant factors, including the explanation for
standard entailing a consideration of all relevant factors, including the explanation for
the delay, the prospect of success in the main action, and the balance of prejudice.
2 2016 (3) BCLR 338 (CC)
3 2008 (4) SA 312 (SCA)
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These factors must be assessed holistically in determining whether the interests of
justice favours the continuation of the litigation despite the procedural lapse.
[18] In matters involving minors the court should be cognizant of Section 28 of the
Constitution which prioritises the best interests of the child in its assessment of the
good cause requirement. This approach leans toward a more lenient approach
where procedural lapses are involved.
Submissions on Behalf of the Applicant
[19] The Applicant submits that the condonation application is not a mere procedural
formality. It is a necessary step to vindicate the constitutional rights of the minor
child. The application is based on three primary pillars namely when the debt
became due, the existence of good cause, and the absence of unreasonable
prejudice to the Respondent.
The Application of the 'Discovery' Doctrine
[20] Based on the Links v MEC for Health decision the applicant contends that the
debt did not become "due" on the date of the child's birth in 2012. As a lay person
the Applicant had no way of knowing that the minor’s neurological impairments were
caused by the possible negligent conduct of the hospital staff at the time. Only on 16
April 2015 when she received the specialist MRI report did she acquire the requisite
knowledge of the causal link between the medical treatment and the resultant harm.
She consequently contends that the notice period only commenced on 16 April 2015,
and that the ensuing litigation was substantially compliant with the legislative intent
of the Act.
'Good Cause and Prospects of Success
[21] According to the applicant the good cause requirement is located in the strength
of the main action. She obtained expert medical -legal reports from independent
specialists indicating a clear deviation from the standard of care expected of a public
health facility. She argues that a denial of condonation would effectively extinguish a
health facility. She argues that a denial of condonation would effectively extinguish a
meritorious claim for damages the purpose of which is to secure the long -term care
and development of a minor child. This would be contrary to the interests of justice
and the protections afforded to children under Section 28 of the Constitution.
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Absence of Unreasonable Prejudice
[22] In respect of prejudice the Applicant asserts that the Respondent’s claims are
unsubstantiated. The Respondent has been in possession of 97 pages of relevant medical
records since 2020, affording the Respondent ample time to investigate the claim. The
Respondent actively participated in the litigation process since the institution of the claim,
filing pleadings and engaging in correspondence contradicting the claim that they were
unaware of or unable to respond to the allegations. The Respondent has no t provided any
evidence of specific prejudice, such as the loss of critical evidence or the unavailability of
key witnesses that could be attributed specifically to the delay in notice.
Submissions on Behalf of the Respondent
[23] In its opposition of the condonation application the Respondent contends that
the application is not only procedurally irregular but that the Applicant has not met
the threshold for the exercise of this Court's discretion to grant the requested relief.
The basis for this proposition is the lack of a sufficient explanation for the delay, the
failure to comply with mandatory statutory service requirements, and the profound
prejudice suffered by the Department.
Inadequacy of the Explanation for the Delay
[24] The Respondent argues that the Applicant has failed to provide a reasonable
explanation for the inordinate delay in bringing this application after being alerted
thereto in the Special Plea of 14 February 2017. The Applicant eventually brought
the condonation application after seven years which period of inactivity is entirely
unexplained and demonstrates a lack of diligence disqualifies the Applicant from the
relief of condonation.
Fatal Defect in Statutory Service
[25] The requirement for the serving of the notice in terms of Section 4(1) of the Act
is mandatory. According to the Respondent the requirement was not complied with
as the notice was served on the MEC and not on the Head of the Department as the
as the notice was served on the MEC and not on the Head of the Department as the
designated statutory official for such service. This non -compliance constitutes a
fundamental failure rendering the notice "fatally defective" rather than merely
technically irregular.
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Unreasonable Prejudice to the Respondent
[26] The delay has caused irreparable prejudice to the Department’s ability to defend
the action. As the events occurred in 2012 the passage of over a decade, key clinical
notes and auxiliary documentation have been misplaced or destroyed in accordance
with standard record -keeping retention policies. The medical personnel who
attended to the Applicant and the minor child at Dilokong Hospital in 2012 are no
longer in the employ of the Department. Their current whereabouts are unknown,
and the Respondent maintains that it is impossible to secure their version of the
events or their testimony for trial. The Respondent argues that even if witnesses
could be located, the significant lapse in time makes the prospect of obtaining
reliable, accurate testimony regarding a routine delivery from 2012 highly
improbable.
Analysis of the Condonation Requirements
[27] The criteria for assessing the condonation application as contained in Section
3(4)(b) of the Act are the absence of prescription, the demonstration of "good
cause," and the absence of unreasonable prejudice to the Respondent.
Assessment of 'Good Cause'
[28] Good cause should not be understood in isolation. It is a cumulative assessment
requiring a sufficient explanation for the delay together with a demonstration that the
Applicant has a viable case. In respect of the delay the Applicant has provided a
reasonable explanation based on the time taken to obtain expert confirmation of the
causal link between the hospital's conduct and the minor’s injury.
[29] The prospects of success are not merely speculative and is based on clear
deviations from the standard of care during the birth process. Where a plaintiff
demonstrates a high probability of success in establishing medical negligence, the
Court should be less inclined to penalize procedural lapses not born of malice or
deliberate neglect. The Applicant’s failure to act between 2017 and the present is
deliberate neglect. The Applicant’s failure to act between 2017 and the present is
eclipsed by the manifest merit of the underlying claim and the constitutional
necessity to ensure that the minor child is not deprived of potential relief due to legal
technicalities.
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Evaluation of 'Unreasonable Prejudice'
[30] The Respondent contends that it has suffered prejudice due to the passage of
time. In assessing this element it is apposite to distinguish between the general
difficulties inherent in defending older claims and "unreasonable prejudice" as
contemplated by the Act.
[31] The assertion of prejudice is undermined by the fact that the Respondent has
been in possession of the relevant medical records for years and has actively
participated in the litigation, including discovery and pre -trial engagement. The
Respondent furthermore failed to identify a single specific document or witness,
beyond general claims, that is now unavailable due to the delay. A defendant cannot
claim prejudice while simultaneously participating in the litigation process for several
years without ra ising the issue of the missing notice as a primary obstacle to its
defence. Consequently, the Court finds the Respondent's claims of prejudice to be
vague, unsubstantiated, and insufficient to outweigh the Applicant's claim.
Interests of Justice and the Minor's Rights
[32] In the final analysis the court is required to balance the statutory obligations in
terms of the Act with the constitutional imperative enshrined in Section 28 of the
Constitution, which demands that the best interests of the child be of paramount
importance in every matter concerning the child.
Conclusion
[33] Having carefully considered the submissions of both parties and evaluated the
evidence in light of the applicable legal principles, this Court concludes that the
Applicant has discharged the onus of proving that condonation is warranted under
Section 3(4) of the Act.
[34] The Court finds that the Applicant’s delay, while extensive, is mitigated by the
circumstances of the case, most notably the time required to ascertain the causal
link between the medical treatment provided and the minor child's developmental
injuries. The "discovery" of the facts necessary to sustain the claim provided a
injuries. The "discovery" of the facts necessary to sustain the claim provided a
reasonable basis for the subsequent commencement of legal proceedings.
Furthermore, the Court is satisfied that the Applicant has established strong
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prospects of success in the main action, a finding supported by the expert clinical
opinions presented before this Court, including those acknowledged by the
Respondent.
[35] Regarding the requirement of prejudice, the Court concludes that the
Respondent’s claims of hardship are largely theoretical. The Respondent has failed
to demonstrate that its ability to mount a substantive defence has been meaningfully
hampered by the late service of notice. The Respondent has been in possession of
the primary medical evidence for years and has actively participated in the litigation,
thereby demonstrating that it possessed sufficient information to engage with the
merits of the dispu te. The procedural flaw regarding the specific addressee of the
notice is thus outweighed by the manifest absence of actual, identifiable prejudice.
[36] In the final analysis, the interests of justice demand that the minor child be
granted access to this Court to have his claim for damages heard. To dismiss the
action on the basis of the procedural deficiencies identified would be to elevate form
over substance and would unjustifiably undermine the constitutional protections
afforded to children. Consequently, the balance of factors weighs decisively in favour
of granting the relief sought by the Applicant.
Order
In the result, the following order is made:
1. Condonation is hereby granted to the Applicant for her failure to comply with
the notice requirements set out in Section 3(2)(a) of the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002.
2. The notice served by the Applicant on 20 May 2015 is declared to be proper
and valid notice for the purposes of the institution of these legal proceedings,
and the Applicant is permitted to proceed with her action against the
Respondent.
3. The Respondent’s special plea, predicated on the Applicant’s alleged failure
to comply with the statutory notice provisions of Act 40 of 2002, is hereby
dismissed.
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4. The Respondent is ordered to pay the costs of this application, including the
costs of counsel, on Scale B.
___________________________
RAUBENHEIMER AJ
ACTING JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
PRETORIA
COUNSEL FOR THE PLAINTIFF: Adv Coetzer
INSTRUCTED BY: Wim Krynauw Inc
COUNSEL FOR THE 1st RESPONDENT: Adv MTHOMBENI
INSTRUCTED BY: STATE ATTORNEY
DATE OF ARGUMENT: 13 August 2026
DATE OF JUDGMENT: 21 August 2026
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