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[2016] ZASCA 27
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Mothupi v Member of the Executive Council, Department of Health Free State Province (20598/2014) [2016] ZASCA 27 (22 March 2016)
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No:
20598/2014
In
the matter between:
KHOMOENG
JANE MOTHUPI
APPELLANT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH FREE STATE
PROVINCE
RESPONDENT
Neutral
Citation:
Mothupi v MEC, Department of Health
Free State
(20598/2014)
[2016] ZASCA 27
(22 March 2016)
Coram:
Cachalia, Leach, Majiedt and Zondi JJA
and Kathree-Setiloane AJA
Heard:
17 March 2016
Delivered:
22 March 2016
Summary:
Application for condonation under s 3(4) of Act 40
of 2002 ─ requirements of ─ good cause established for
condonation.
ORDER
On
appeal from:
The Free State
Division of the High Court, Bloemfontein (Kruger, Moloi and Lekale JJ
sitting as court of appeal):
1
The appeal is upheld.
2
The order of the court a quo is set aside and substituted with the
following:
‘
The
appeal is dismissed, with costs.’
3
The respondent is to pay the costs of the appeal, including the costs
of two counsel. This order will exclude (i) the costs of
the
application for condonation for the late filing of the appellant’s
heads of argument, and (ii) 60% of the cost of preparing
the appeal
record, which costs are to be paid
de bonis propriis
by the
appellant’s attorney.
JUDGMENT
Leach
JA (Cachalia, Majiedt and Zondi JJA and Kathree-Setiloane AJA
concurring)
[1]
What falls to be decided in this matter is whether the appellant was
correctly granted condonation for failing to give proper
notice under
s 3 of the Institution of Legal Proceedings Against Certain Organs of
State Act 40 of 2002 (the Act) in respect of
a claim for damages
against the respondent, the MEC of the Department of Health in the
Free State Province. Although a single judge
of Free State Division
of the High Court (Rampai AJP) granted her such condonation, that
order was set aside on appeal by a full
court. The appeal
against the latter judgment is with this court’s special leave.
[2]
On the evening of 27 February 2002 the appellant, a woman now in her
mid-thirties, was admitted to the Pelonomi Hospital, Bloemfontein,
experiencing difficulties in child-birth. It was decided that the
size of the foetus was such that it would be best for the child
to be
delivered by way of a Caesarean section. This procedure was carried
out early on 28 February 2008. In order to perform the
surgery, the
appellant was given a spinal anaesthetic. A few hours after the
delivery, the appellant found that she was unable
to move her right
leg. Thereafter, she developed a weakness on the left side. Her
condition progressively deteriorated and she
is now practically
wheelchair bound.
[3]
The appellant blames the alleged negligent administration of the
spinal anaesthetic as being the cause of her paralysis. She
contends
that subsequent examination has shown her to have an acute scoliosis
in the lumber region and that, had there been a thorough
examination
of the spinal column before the anaesthetic was administered, this
condition would have been discovered and the anaesthetic
would not
have been given.
[4]
Almost a year after the delivery of her child, the appellant
consulted an attorney, with the view to instituting proceedings
for
damages as a result of the negligent administration of the
anaesthetic. On 27 February 2009, her attorney, under the
wrong
impression that it was appropriate to sue the national Minister of
Health, gave notice to the latter of the appellant’s
intention
to institute legal proceedings for damages of R2 million. More than
two months later, a member of the so-called ‘Cluster:
Legal
Services’ of the national Department of Health wrote to the
appellant’s attorney, stating that the complaint
had been
‘erroneously addressed to the Minister of Health’ and
advising him to direct his correspondence to the ‘Bloemfontein
Provincial Department of Health’ Presumably what was meant by
this is that the notice ought to have been addressed to the
respondent, the MEC of the Free State Department of Health.
[5]
Despite this warning, on 12 October 2008 the appellant’s
attorney served a summons on the national Minister of Health
who, in
due course, entered appearance to defend. Shortly thereafter,
the appellant had a change of heart and, on 22 October
2009, gave
notice of her intention to amend her claim by joining the respondent
as a second defendant.
[6]
In response to the notice of amendment, the State Attorney wrote to
the appellant’s attorney. He stated that he had been
instructed
to object to the amendment ‘due to the fact that this is not an
amendment to pleadings . . . but the addition
of a new party, which
is in fact a new cause of action, which can in my humble opinion only
be done by way of an application to
join a party’. He went on
to suggest that the claim against the national Minister of Health be
withdrawn and that the appellant
could then give proper notice to
respondent and a thereafter issue a fresh summons against the
respondent.
[7]
The appellant’s attorney did not follow this advice. Instead,
he persisted in seeking and obtaining the amendment. It
was granted,
unopposed, on 29 April 2010, with the court ordering that the amended
particulars of claim be served on the respondent.
Subsequently, on
11 August 2010, a plea was filed on behalf of both the Minister
and the respondent.
[8]
Section 3 of the Act provides that no legal proceedings for the
recovery of a debt may be instituted against an organ of state
unless
the latter has been given a written notice within six months from the
date in which the debt became due, briefly setting
out the facts
giving rise to the debt and such particulars as thereof as are within
the knowledge of the creditor. It is common
cause that the
plaintiff’s claim for damages is a ‘debt’ as
envisaged by this section, and it apparent from the
history of the
litigation summarised above that the appellant failed to give notice
to the respondent of her claim for damages
before instituting
proceedings against the respondent by way of the amendment to the
summons.
[9]
However, the appellant’s failure to give notice under s 3 of
the Act is not necessarily fatal to her claim against the
respondent.
Section 3(4)(
b
) goes on to provide that condonation for
non-compliance with such a notice may be granted if a court is
satisfied that:
‘
(i)
The debt has not been extinguished by prescription;
(ii)
Good cause exists for the failure by the creditor; and
(iii)
The organ of state was not unreasonably prejudiced by the failure.’
[10]
Relying on these provisions, on 16 February 2011 the appellant
applied to the Free State High Court for an order condoning
her
failure to give the respondent the requisite notice before the
institution of proceedings. As set out at the outset, the application
succeeded but the order granting her condonation was subsequently set
aside on appeal.
[11]
As appears from s 3(4)(
b
)
quoted above, there are three requirements that need be satisfied for
condonation to be granted. The first and third of these
creates no
difficulty in the present case. In regard to the first, the
appellant’s claim for damages against the respondent
had not
been extinguished by prescription prior to the institution of
proceedings. In regard to the third, the respondent was not
unreasonably prejudiced by the failure to give notice timeously. As
is readily apparent, by reason of the involvement of the claim
against the National Minister the State Attorney knew all about the
matter early on.
[12]
But more importantly, the respondent does not allege that it has
suffered any prejudice. The object of a provision such as
s 3 is to
enable the State, a large and cumbersome organisation, to investigate
claims so as to consider whether to settle or compromise
a claim
before costs escalate unnecessarily, or to properly prepare its
defence – which may be frustrated if it is unable
to
investigate relatively soon after the alleged incident occurred. In
the present case, however, the identity of the medical practitioner
who administered the spinal anaesthetic which the appellant alleges
led to her paraplegia, is not only known but an affidavit from
her,
in which she disputes any negligence on her part, has been filed of
record. In these circumstances, the respondent cannot
allege that the
underlying purpose of the notice provisions has not been met or that
it has been prejudiced by the lack of receiving
notice.
[13]
Consequently, the only relevant issue which needs be debated further
is whether the requirement of good cause as set out in
s 3(4)(
b
)(ii)
has been satisfied. As I understand the judgment of the court a quo,
it was of the view that good cause had not been established.
Its
reasoning appears to be that the delay in bringing the condonation
application was due to the appellant’s attorney’s
lack of
diligence, that litigants must accept responsibility for the actions
of their legal representatives, that there comes a
point beyond which
litigants cannot avoid liability for their legal representative’s
default and that litigation of this
nature cannot be conducted in a
manner as slip-shod as the appellant’s attorney conducted
himself in the present case.
[14]
There can in my view be no doubt that the attorney displayed a woeful
lack of expertise and made himself guilty of numerous
unexplained
delays. But that is not the only factor to be considered. As was said
in
Madinda v Minister of Safety and Security
2008 (4f) SA 312
(SCA) para 10:
‘
Good
cause looks at all those factors which bear on the fairness of
granting the relief as between the parties and as affecting
the
proper administration of justice. In any given factual complex it may
be that only some of many of such possible factors become
relevant.
These may include prospects of success in the proposed action, the
reason for the delay, the sufficiency of the explanation
offered, the
bona fides of the applicant, and any contribution by other persons or
parties to the delay and the applicant’s
responsibility
therefore.’
[15]
In considering the issue of good cause, it must be remembered that
the claim of the appellant is a substantial one and that
it is not
disputed that her paraplegia developed after the spinal anaesthetic
had been administered to her. The mere fact that
this took place does
not automatically mean that the medical practitioner who administered
the anaesthetic was negligent, but it
is at the very least of
considerable relevance that what should have been a relatively
straightforward medical procedure has resulted
in catastrophic
consequences. Of the information presently available it would be
wrong to speculate on the likely outcome of a
claim if it goes to
trial, but expert medical opinion is presently available to the
effect that the anaesthetic was negligently
administered. At first
blush, then, the prospects of success are more than reasonable.
[16]
Moreover, given that the respondent does not rely upon any prejudice,
it is clear that it is seeking to short-circuit the claim
by relying
solely upon a technical point. Had it been able to show that the
conduct of its case had in fact been prejudiced in
some way by reason
of the delay and a failure to give notice timeously, the court may
well have viewed its opposition to condonation
with a less jaundiced
eye. However, relying upon the failure to give notice when such
failure did not cause any prejudice does
not redound to the credit of
the respondent ─ Cf
MEC for
Education, KwaZulu-Natal v Shange
2012
(5) SA 313
(SCA) paras 17-22.
[17]
In my view, given these circumstances, it is in the interests of
justice that the appellant be allowed to attempt to prove
her claim
in a court of law. That being so, there is good cause to condone her
failure to timeously comply with the notice requirement
of the Act.
The court a quo erred in concluding otherwise. It ought to have
dismissed the respondent’s appeal against the
grant of
condonation. The appeal must therefore succeed.
[18]
I turn to the question of costs. As the successful party the
appellant is entitled to her costs of appeal. There are certain
items
of the costs, however, that need more detailed attention.
[19]
First, the appellant’s heads of argument in this court were
filed out of time, a fact that led to the appellant having
to apply
for condonation for her failure to act timeously. Although not
opposed, the respondent understandably objected to the
appellant’s
suggestion that the costs should be costs in the cause ─ which
if ordered, would result in the respondent
ultimately bearing all
those costs in the event of the appeal succeeding, as it must. The
general rule is that a party seeking
an indulgence should bear the
costs of obtaining it. The costs of the application to obtain
condonation for the late filing of
the heads (which was granted at
the outset of the hearing) are likely to be minimal but, in my view,
there is no room for the respondent
to bear whatever costs it may
have incurred in that application.
[20]
By the same token, I see no reason for the appellant herself to be
burdened by any portion of those costs. As is apparent from
what I
have already said, the conduct of the appellant’s case has been
bedevilled by the lax and slip-shod practice of her
attorney. The
history of the litigation reflects a sad saga of the attorney
floundering about, making himself guilty of undue and
unexplained
delays, failing to properly prepare, and disregarding the rules of
court and well established legal principles relevant
to the
appellant’s claim. One would have thought that he would have
learned his lesson by the necessity to have applied for
condonation
in the court of first instance, but the presentation of this appeal
indicates otherwise.
[21]
This is borne out, first, by the failure to timeously file heads of
argument in this court. In support of the application for
condonation
in that regard, the attorney filed an affidavit explaining how busy
he had been with various matters and now he had
experienced
difficulty in obtaining funds from his client. It is unnecessary to
deal with this in any detail. The simple truth
is that the delay was
due to his failure to act timeously, yet again.
[22]
That is not the end of the matter. The appeal record in this court
has been grossly inflated by the inclusion of unnecessary
material,
including the argument that was addressed to the court a quo, the
application for leave for special leave to appeal lodged
in this
court, and the duplication of a number of documents. At least 60% of
the record was totally superfluous and prepared at
unnecessary cost.
This too must be laid at the door of the appellant’s attorney.
[23]
This court has never hesitated to make an attorney who has acted in
such a way liable for unnecessary costs – see eg
Jeebhai
and others v Minister of Home Affairs and another
2009 (4) SA 662
(SCA). Counsel for the appellant indeed conceded that
the attorney should personally bear portion of the costs occasioned
by his
ineptitude and failure to comply with the rules. In my view,
it would be appropriate to make him bear the costs of the condonation
application relating to the heads of argument and 60% of the costs of
the record.
[24]
Finally, I should mention that the appellant asked for the costs of
two counsel on appeal. The issues involved were by no means
complicated, but sight cannot be lost at the fact that the order of
the court a quo would non-suit the appellant in respect of
probably
an extremely large claim for damages. And in approaching this court
for relief, it was necessary for her to persuade us
that a full court
had erred. In these circumstances, and in the light of the importance
of the matter to the appellant, the employment
of two counsel seems
to me to have been a wise and reasonable precaution, and the cost
should therefore be allowed.
[25]
In the result, the following order is issued:
1
The appeal is upheld.
2
The order of the court a quo is set aside and substituted with the
following:
‘
The
appeal is dismissed, with costs.’
3
The respondent is to pay the costs of the appeal, including the costs
of two counsel. This order will exclude (i) the costs
of the
application for condonation for the late filing of the appellant’s
heads of argument, and (ii) 60% of the cost of
preparing the appeal
record, which costs are to be paid
de
bonis propriis
by the appellant’s
attorney.
___________________
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellant:
T V Norman SC (C M Nqala)
Instructed
by:
Ponoane
Attorneys, Bloemfontein
For
the Respondent:
G J M Wright
Instructed
by:
State
Attorney, Bloemfontein