In a recent judgment of the Limpopo Division of the High Court, the court dismissed the defendant's reliance on a special plea of non-compliance with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Act). The defendant was a Member of the Executive Council for Health in Limpopo (the MEC). The court held that service on the MEC achieved the purpose of the statutory notice and, in any event, that the defendant could not, at trial, advance a different service argument that had not been properly pleaded. The MEC's special plea was dismissed, and punitive costs were awarded, with the court emphasising the unfairness of procedural ambush and delay, particularly where minor children are involved.
The plaintiff, acting on behalf of three minor children, instituted action against the MEC in a representative capacity. The defendant alleged that the plaintiff was barred from pursuing the claim because the statutory notice was not served within six months of the debt becoming due. However, by the hearing date, the defendant effectively conceded that the notice had not been delivered late and instead contended, in oral argument, that the notice had been delivered to the MEC rather than to the Head of Department and was therefore defective.
Two questions framed the court’s enquiry. First, who must receive a notice in terms of section 3 when proceedings are instituted against the MEC, and whether service on the MEC satisfies the statutory requirement. Second, whether the defendant was entitled to advance a case that had not been pleaded, and whether that defect was dispositive of the matter.
In addressing the issue of service, the court analysed the statutory framework, including the interplay between the Act and the Public Service Act, particularly the schedules referring to “Head: Health” at provincial level. In the absence of any evidence from the defendant clarifying the internal structure of the department or demonstrating that “Head: Health” refers to a specific official distinct from the MEC, the court adopted a pragmatic interpretation informed by the purpose of the legislation and the ordinary meaning of the terminology used.
The court held that service on the MEC achieved the core function of the notice, namely, to alert the state to the impending claim and enable investigation and a considered response. In this context, the court found no prejudice arising from delivery of the notice to the MEC, particularly given the operational reality that correspondence is handled through departmental systems rather than by personal receipt. The court further held that, even if the defendant’s argument regarding defective service had merit, it would nonetheless fail because it was not properly pleaded. The pleaded case was one of lateness, not mis service, and the plaintiff could not be ambushed at trial with a new defence.
The special plea was dismissed, and the defendant was ordered to pay costs on a punitive scale, including wasted trial costs and the costs of two counsel. The court emphasised the seriousness of delay and unnecessary expense in litigation involving minor children and highlighted that experienced litigants must ensure their pleadings accurately set out the material facts and the true basis of their procedural defences.
