CASE NAME:
Mpinga v Makakuvhule & Associates & another [2011] JOL 27839 (GSJ)

AREA OF LAW
Civil procedure – Delictual action

BRIEF FACTS/SUMMARY:
The plaintiff was treated for an injury to her leg, at hospitals under the control of the second defendant. She alleged that as a result of the negligent treatment of her leg by the personnel of the hospitals, the injury deteriorated until the leg had to be amputated in November 2006. In May 2008, the plaintiff instructed the first defendant, an attorney, to act on her behalf to institute action against the defendants.

In November 2009, the first defendant issued summons against the second defendant, which summons was served on 1 December 2009. The second defendant raised two special pleas namely, that there was no compliance with section 3 the Institution of Legal Proceedings Against Certain Organs of State Act, Act 40 of 2002 (“the Act”) by virtue of the fact that notice was not given as required by the Act to the State within six months from the date on which the debt became due. A second special plea was that the plaintiff’s claim had become prescribed as the delict occurred on 26 September 2006 and summons was issued more than three years later.

It was held:
It is declared that the first defendant is not liable to the plaintiff as a result of the alleged non-compliance with s 3 of the Act prior to the finalisation of the application for condonation for the defective notice given pursuant to s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

The second defendant’s special plea of prescription is dismissed.

The second defendant is ordered to pay the costs of the plaintiff regarding the determination of the issues herein referred to including the qualifying fees of Dr L Marais.

The second defendant is ordered to pay the costs of the first defendant.

Importance/Value:   
Action against State – Failure to give timeous notice – Prescription

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