Organ of State as defendant, giving notice and condonation
15 October 2020 | Yolandi Vosloo
More often than not Organs of State find themselves as cited Defendants in personal injury claims stretching from public liability to unlawful arrest and detention. If an Organ of State is indeed identified as being your nominated Defendant it is important to note that the first step in instituting action does not merely entail the issuing and service of summons.
Section 3(1)(a) of The Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 requires a claimant who wishes to proceed against an organ of state to give notice to such entity within 6 months from the date on which the debt became due or the incident occurred, setting out the facts giving rise to the debt or incident and any particulars of the debt or incident that are within the knowledge of the claimant. The premise behind such requirement is to prevent a situation where an organ of state is called upon to meet a claim which it might have defended successfully if it had been given an early opportunity to investigate the circumstances leading thereto.
Should a claimant fail to serve such a notice in accordance with the provision of the act, such claimant will first have to request and obtain condonation from the organ of state. If the entity refused the claimant will have to bring an application to court for condonation of the fact that the notice had not been given or that the notice had been given out of time.
An application for condonation is not a right and a claimant will have to satisfy the court of the following before such leave will be granted:
- that the debt or cause of action has not been extinguished by prescription.
- that good cause exists for the failure to comply with the notice requirements.
- that the organ of state was not unreasonably prejudice by that failure.
It is therefore paramount that a claimant seeking condonation must show sufficient cause entitling them to the court’s indulgence.