TOPIC 3: CONDONATION, STATE ATTORNEY SERVICE AND PRESCRIPTION

LATE NOTICE CONDONATION: What statutory section empowers a court to grant condonation for a late statutory notice, and what 3 grounds must be established?

• Condonation is governed by Section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

• Under Section 3(4)(b), the court may grant condonation if satisfied that:

  1. The main debt has not prescribed under the Prescription Act 68 of 1969.

  2. Good cause exists for the failure to give timeous notice.

  3. The organ of state suffered no unreasonable prejudice by the failure.

CONDONATION TIMING (DE WITT): Must condonation for a late notice be granted before summons is issued against an organ of state?

• No, based on the Supreme Court of Appeal precedent in Minister of Safety and Security v De Witt 2009 (1) SA 411 (SCA).

• Under De Witt, an application for condonation under Section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 can be validly applied for and granted after summons has already been issued and served, provided the main debt has not prescribed.

CULTURE OF JUSTIFICATION: Why is it strategically better to issue summons first and apply for condonation post-summons under De Witt?

• Stopping Prescription: Issuing and serving summons immediately interrupts the 3-year extinctive prescription clock under Section 15(1) of the Prescription Act 68 of 1969.

• Avoiding Expiry: Waiting for an interlocutory condonation motion to be heard first risks letting the main 3-year prescription window expire while waiting for a court date.

• Pleading Strategy: We plead the factual basis for condonation directly in Paragraph 5 of our Particulars of Claim, defeating the State's Special Plea when delivered.

STATE ATTORNEY COPY DEADLINE: What rule governs delivering a summons copy to the State Attorney, and what is the exact deadline?

• Under Section 2(2)(b) of the State Liability Act 20 of 1957, a procedural copy of any summons served on an executive department must be delivered to the State Attorney within 5 court days of service.

PRESCRIPTION INTERRUPTION (MOLOKWANE): Does a delay in delivering the 5-day State Attorney copy invalidate the summons or undo prescription interruption?

• No, under the Supreme Court of Appeal precedent in Minister of Police v Molokwane 2022 ZASCA 111.

• Primary service of summons on the SAPS Provincial Commissioner is the judicial act that successfully interrupts extinctive prescription under Section 15(1) of the Prescription Act 68 of 1969.

CULTURE OF JUSTIFICATION: Why does a delay in delivering the administrative copy to the State Attorney under Section 2(2)(b) not invalidate service?

• Administrative vs Judicial Act: Under Minister of Police v Molokwane, primary service on the Provincial Commissioner gives full legal notice to the organ of State.

• Internal Routing: Delivering a copy to the State Attorney under Section 2(2)(b) of the State Liability Act 20 of 1957 is an internal administrative directive between state departments.

• Absence of Prejudice: An administrative delay between state offices cannot defeat a citizen's constitutional right of access to courts (Section 34 of the Constitution) where the State suffered no real prejudice.