Employee's prescribed damages claim dismissed
The Gauteng High Court (Pretoria) has dealt a blow to a former government employee’s multimillion-rand lawsuit against two state departments, ruling her claim had legally expired due to delays by her legal teams.
In a judgment handed down yesterday Judge Anthony Millar dismissed the application by Thandeka Mxenge, who sought the court’s condonation for the late filing of her application for damages arising out of the malicious prosecution of disciplinary proceedings.
According to TimesLIVE this comes after she missed critical statutory deadlines to sue the Department of Women, Youth & People with Disabilities and the Department of Justice.
Mxenge was fired from her position at the department in July 2018. She challenged her dismissal and took the matter to arbitration. The arbitrator ruled in Mxenge’s favour on 30 September 2019 and the decision was communicated to the parties on 4 October 2019.
The arbitrator also ordered Mxenge be permitted to return to work on 21 October 2019 and that all payments due to her be made.
Mxenge went back to the office but later sued the state for damages.
In his judgment, Millar said the date on which the debt would be said to have become due, was 4 October 2019.
According to News24, he said the last day upon which the claim could be enforced by the service of legal process was 4 October 2022.
He said based on this timeline, the notice to be delivered in terms of the Institution of Legal Proceedings against Certain Organs of State Act was to be delivered by 4 April 2020.
However, Mxenge’s notice in terms of the Act was delivered on 13 October 2021, just over two years after she was notified of the arbitration award and 18 months later than it ought to have been served.
The judge said what was in issue was whether the debt has prescribed and whether there is good cause for Mxenge not complying timeously with the delivery of the notice.
Millar said the summons was issued on 4 October 2022 and served on 6 October 2022, two days outside of the three-year period required by the Prescription Act.
In refusing Mxenge’s application for the late filing of the notice in terms of the Act, Millar also ordered Mxenge to pay the legal costs.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
