In October 2025, the Supreme Court of Appeal decided to grant an application for condonation for late notice under the Institution of Legal Proceedings against Certain Organs of State Act of 2002. In doing so, it addressed how the Constitutional rights of children and access to courts inform the assessment of the late statutory notice.
The claimant’s late husband, and the father of her minor children, died in a car accident in 2011. She instructed attorneys shortly after the accident to recover damages from any party liable for her husband’s death. The attorneys erroneously proceeded against the Road Accident Fund. She was informed in 2017 that her claim had been prescribed, but the children’s claim could still be pursued.
The claimant then consulted a different firm of attorneys who advised her that the correct party for the children to sue was the MEC for Police, Roads and Transport (Free State), on the basis that it had failed to maintain the road where the accident occurred and that potholes and inadequate warning signs allegedly caused the fatal crash of her husband.
No notice had been served by her former attorneys within six months of the event as required by the Act. Notice was only delivered in 2018, more than seven years later. The claimant, acting on behalf of her minor children, brought an application for condonation for the late delivery of the notice in terms of section 3(4) of the Act. Three requirements must be met for such an application to succeed. Firstly, the debt must not have been extinguished by prescription. Secondly, good cause must exist for the delay. Thirdly, the organ of state must not have been unreasonably prejudiced by the failure.
The first requirement was not at issue as the claims of the children had not prescribed.
The court held that the second and third requirements are to be balanced with due regard to constitutional rights. Section 34 of the Constitution guarantees the right of access to courts. The court time‑bar provisions in the Act limit this right and should be approached with careful attention to ensure access to a fair public hearing.
The court also addressed children’s rights under s 28(2) of the Constitution, read with South Africa’s obligations under the UN Convention on the Rights of the Child. It held that courts should give independent and informed attention to the best interests of affected children when procedural rulings may determine whether their substantive claims are heard. Appropriate constitutional weight must be given to the children’s interests, avoiding an overly critical consideration of the merits at the condonation stage.
On the statutory test, the court found that the claimant’s explanation for the delay was adequate when assessed in light of the role and lapses of legal representatives. The court found that the MEC had not placed before the court sufficient evidence that would be unreasonably prejudiced were condonation to be granted. It is however hard to see how the state of the road at the time of the collision could be investigated after seven years.
The court granted special leave, upheld the appeal and directed that the matter proceed to trial.
The court’s application of constitutional rights in this context may be relevant to other decisions where contractual or statutory time bars are at issue, particularly if the rights of children are involved.
Rossouw v Blignaut & Wessels and Another (1234/23) [2025] ZASCA 146 (07 October 2025)