Van Vuuren v Mec for Health, Gauteng Province (054/2024) [2025] ZASCA 76 (4 June 2025)
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.
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 died 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 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, she 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 pressure 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 parts,
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 .
. .’
[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 pleas,
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
(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 curatorship 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 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 and 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 not have been expected to know the
requirements of litigating against the respondent as the
entity that
administered the hospital. Over the period 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 attorneys, 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.
[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 was
to introduce an alternative form of relief, ie that
this Court 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.
S
E WEINER
JUDGE
OF APPEAL
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