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In Minister of Safety and Security v De Witt 2009 (1) SA 457 (SCA) , the Supreme Court of Appeal was asked to consider if a court could grant condonation for non-compliance with the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, where the plaintiff gave no notice whatsoever of his intention to institute legal proceedings. The court said it could grant condonation, if the proceedings were instituted before the expiry of the prescription period, if good cause existed for the plaintiff's non-compliance, and if the organ of state had not been unduly prejudiced. The court held as follows:
* The Act facilitates access to courts, and regulates legal procedures against large government organisations.
* The Act avoids drawing a hard and fast rule that may cause undue hardship to a plaintiff. The Act makes provision for time limits, but allows a court to condone non-compliance.
* Section 3 of the Act, which appears to have peremptory wording, must be read as a whole and the purpose of condonation must be kept in mind, i.e. to allow an action despite the fact that the peremptory provisions of section 3(1) were not met.
* The provision allowing condonation gives a discretion to a court to determine if the organ of state can rely on non-compliance, whatever form the non-compliance may take. If this were not so, the requirement of written notice would operate as an absolute bar to instituting legal proceedings and would constitute a real impediment to the plaintiff's access to court.
By: Webber Wentzel
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