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[2021] ZAWCHC 44
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Cassiem and Another v Government Employees Medical Scheme (9619 / 2020) [2021] ZAWCHC 44 (15 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
Number: 9619 / 2020
In
the matter between:
CHARLNITA
CASSIEM
First
Applicant
YUSUF
CASSIEM
Second
Applicant
and
GOVERNMENT
EMPLOYEES MEDICAL SCHEME
Respondent
Coram:
Cloete, Wille et Kusevitsky, JJ
Heard:
26
th
of February 2021
Delivered:
15
th
of March 2021
JUDGMENT
WILLE,
J: (Cloete et Kusevitsky, JJ concurring)
Relevant
background
[1]
On the 15
th
of
August 2019, the first and second applicants
[1]
,
launched an application
[2]
,
in which they, inter alia, on an urgent basis, sought interim relief
in the form of a money judgment
[3]
,
against the respondent.
[4]
The first application was opposed and was determined on the 23
rd
of August 2019.
[2]
The first application was dismissed on the merits and also for want
of urgency.
[5]
Some of the relevant findings in the first application, were the
following; that the application’s purportedly
altruistic
purpose was without merit
;
that
it was an application brought for payment of money to the applicants’
own benefit; that it had been brought in
respect of a disputed
claim forming the subject matter of a pending action and therefore it
must have been reasonably anticipated
that the applicants’
claim would be disputed; that the application had no prospect
of success and that the relief was
not urgent.
[3]
Almost a year after the dismissal of the first application
[6]
,
the applicants launched the present application
[7]
,
in which they similarly seek a money judgment
[8]
,
also by way of an order for relief, pendente lite. The interim
relief now sought is in all material respects a mirror image
of the
core relief for a money judgment which had been sought in the first
application. The first application was also not
the first
instance in which the same relief was sought. Prior to
launching the second application, the applicants sought
direct access
to the Constitutional Court and same was denied by no less than ten
judges of the Constitutional Court.
[9]
[4]
The common thread that permeated through these various proceedings,
is the contention
by the applicants that the first applicant is
entitled to payment in full, from the respondent of her claims for
dialysis services
rendered to members of the respondent and for
equipment hire connected therewith, irrespective of what she
charges.
[10]
This is the core dispute between the parties.
[11]
This is precisely the very dispute which is the issue that needs to
be determined in the action proceedings.
The
action proceedings
[5]
On the 15th March 2019, the respondent instituted action against the
first applicant
in which
it sought repayment by
the first applicant of R1 181 558,80. The
respondent’s case is that this sum had been
paid in error to
the first applicant
as a consequence of inflated claims for
services having been submitted by the first applicant to the
respondent.
[6]
The applicants advanced a plea and a counterclaim to the claims in
the main action.
The counterclaim is for payment of: - the sum
of over R8 million for alleged claims due and payable by the
respondent: - the sum
of a further R5 million rand for alleged
services rendered to members of the respondent: - and a further sum
of R5 million rand
for alleged pain, humiliation and trauma which the
respondent has inflicted upon the applicants and their minor
children.
[7]
The first applicant’s case is that she rendered dialysis
services to members
of the respondent and that she is further
entitled to certain equipment hire fees in connection therewith.
These fees are
in most instances more than R80 000,00 per session.
These services were also often rendered twice per day.
[8]
The respondent delivered a plea to the first applicant’s
counterclaim as well
as a replication to her plea. From these
pleadings, it is apparent that the core issue of the dispute between
the parties
is the first applicant’s contention that the
services rendered by her, amount to ‘Prescribed Minimum
Benefits’
and are accordingly payable to her without demur.
She takes the position that these benefits are as defined in
terms of the
Medical Schemes Act
[12]
,
read together with the relevant regulations, rules and tariffs.
Simply put, it is the first applicant’s case that
she is
entitled to claim any amount that she desires for these ‘services’
and that respondent is obliged to compensate
her for the rates she
determines. The pleadings in the pending action have closed and
the parties have already entered the
trial preparation phase of the
proceedings.
[13]
The
first application
[9]
As mentioned previously
[14]
,
the applicants launched their first application in which they sought
a money judgment against the respondent, which relief was
couched as
relief, pendente lite. The first application was dismissed with
reasons.
[15]
.
No steps have been taken by the applicants to seek leave to appeal
against that judgment and order.
The
second application
[10]
Almost a year after the dismissal of the first application, the
applicants launched a second
application
[16]
,
in which they again similarly seek a money judgment, pendente lite.
The relief now sought is in all material respects a
mirror
image of relief which had been sought in the first application.
[11]
It is the respondent’s case that the second application again
falls to be dismissed, but
this time, with costs on a punitive
scale. The position is also taken that the founding and
replying affidavits in the second
application, mostly contain
irrelevant allegations, including numerous unfounded, vexatious and
slanderous allegations. The
point being that these unfounded
allegations do not advance any clarity in connection with the
disputed issue.
Res
judicata
[12]
Issue estoppel applies where an issue of fact or law was an essential
element of a prior final
judgment. The issue cannot be
revisited in subsequent proceedings before another court, even if a
different cause of action
is relied upon or different relief is
claimed.
[17]
Our courts have recognized that a strict application of issue
estoppel could result in unfairness in some unusual circumstances,
but this is typically applied in cases where the nature of the issue
is in dispute or at least open to some doubt. In my
view, the
nature of the issue was never in any doubt in this case. The
court in the first application itself had no difficulty
in defining
the issue and correctly defined the issue.
[13]
Issue estoppel also applies when different relief based on different
causes of action is sought
in a subsequent case, if it involves the
determination of the same issue of fact or law.
[18]
I take the following from
Ekurhuleni
[19]
,
where it was held as follows: -
‘…
the submission that
res judicata does not apply because of the lack of sameness in the
cause of action is misconceived. Sameness
is determined by the
identity of the question previously set in motion’
[14]
Issue estoppel developed precisely because requiring sameness between
the two causes of action
allows parties to re-litigate the same issue
by garbing these up in different causes of action. The
authorities not to apply
issue estoppel for reasons of justice and
equity need to be evaluated with reference to the
Henderson
[20]
principle.
This principle provides, inter alia,
that
when a given matter becomes a subject of litigation, the following
approach falls to be adopted:
‘
the court
requires the parties to that litigation to bring forward their whole
case, and will not (except under special circumstances)
permit the
same parties to open the same subject of litigation in respect of
matter which might have been brought forward as part
of the subject
in contest, but which was not brought forward, only because they
have, from negligence, inadvertence, or even accident,
omitted part
of their case’
[15]
This doctrine has been fully assimilated into our law. The
doctrine applies equally to
pure claims of res judicata and to claims
based on issue estoppel. When the applicants launched their
first application,
it must be so that they were required to put
forward their entire case. Further, and most importantly, the
applicants elected
to persist with their first application, despite
the fact that there was seemingly no urgent need for the relief, at
that stage.
[16]
By doing this, the applicants effectively euthanized their case in
connection with the issue
of payment, pendente lite. Additional
causes of action for the determination of the same issue cannot be
raised in subsequent
proceedings on the same issue. This,
particularly in the circumstances where the applicant’s first
attempt failed on
the very same issue.
[17]
Further, in my view, for issue estoppel to apply, it is not necessary
that the previous court
expressly determines the issue before the
latter court. I say this because, it would undermine the
purpose of res judicata
and issue estoppel to hold otherwise. It
would allow litigants to freely exodus from any order granted without
not only a
reasoned judgment, but one that expressly addresses the
issue of fact or law that was nonetheless structural to the decision.
As
a matter of logic, it must be so, that the fashion in which
Sievers AJ, expressed himself and decided the issue, remains largely
irrelevant in subsequent proceedings in a court of first instance on
the same issue.
[18]
This is so also because this doctrinal principle is founded on public
policy, which necessitates
that litigation should not be endless, and
it is founded upon the requirements of good faith which do not permit
of the same thing
being demanded more than once.
[21]
It is so that the relief sought by the applicants in the second
application, had already been dismissed in the first application,
and
has unsuccessfully been pursued since at least the middle of 2018.
[19]
The requirements for the defence of res judicata have clearly been
met in that the first application
was between the same parties
[22]
,
and that the same relief in the form of payment on a pendente lite
basis was sought on the same grounds. Further, that the
first
application was dismissed on the merits in that it was found that it
had been reasonably anticipated that the alleged debt
would be
disputed. The issue, which is subject to issue estoppel, is the
question whether the first applicant can claim payment
of a portion
of her disputed counterclaim in the main action, pendente lite, by
way of urgent motion proceedings. The answer
is that this is
legally impermissible. Of equal importance is that one
[23]
of the issues that was adjudicated upon in the first application was
also the subject of a
striking
from the roll
by this court on the
3
rd
of December
2020. This was connected to the issue of urgency.
Lis
pendens
[20]
In my view, the relief pendente lite sought by the applicants is
undoubtedly subject to numerous
factual disputes. These
disputes are clearly formulated in the pleadings in the main action
which would in any event render
them the subject of this latter
defence raised in the form of a shield. Any
party wishing to raise this defence bears the onus of alleging and
proving: - that there is pending litigation: - that the pending
litigation is between the same parties
[24]
:
- that the litigation is based on the same cause of action and that
the pending litigation is in respect of the same subject matter.
[25]
All these manifestations are present in this application.
No
cause of action
[21]
It is a matter of trite law that an application may be dismissed
particularly when the applicant
should have realised when launching
her application that a serious dispute of fact was bound to develop.
It is certainly
not appropriate that an applicant should
inaugurate proceedings by motion with the knowledge of the
probability of a protracted
enquiry into disputed facts not capable
of easy ascertainment.
[26]
[22]
The applicants seek a judgment in the form of relief, pendente lite,
sounding in money. This
on an urgent basis. The facts set out
in the founding affidavit must be formulated clearly absent any
argumentative matter.
The respondent takes the position that
the applicants’ monetary claim is subject to various
disputes
[27]
and it simply cannot be determined by way of motion proceedings. On
this, I agree.
[23]
Further, it is advanced that there is a clear dispute of fact on the
papers in as much as the
applicants have failed to demonstrate that
the services claimed for have been duly rendered and they also have
failed to prove
the quantum of the first applicant’s claims.
The applicants must have foreshadowed these disputes of fact when the
present application was launched, taking into account the pervious
litigation in connection with this matter.
[24]
A litigant is entitled to seek relief by way of application, but if
the applicant has reason
to believe that facts essential to the
success of the claim will probably be disputed, the applicant is at
risk. This is
so because the court, in the exercise of its
discretion, may decide neither to refer the matter to trial, nor to
direct that oral
evidence be placed before it, but to dismiss the
application.
[28]
[25]
Regrettably, the applicants have attempted to disguise the money
judgment in the form of an interim
interdict. No case for an
interim interdict has been made out. The requirements for an
interim interdict have been
clearly defined in
Sitologoi
[29]
and do not need to be rehearsed. The alleged right to payment
of the first applicant’s claims is subject to several
serious
disputes of fact, which by far exceed - some doubt - as these claims
are disputed on sound grounds, although it is not
for us to make any
findings in regard thereto since this will be the function of the
trial court. Further, the applicants
have not proved a
reasonable apprehension of irreparable and imminent harm should the
interdict not be granted.
[26]
To the extent that any balance of convenience may be at play, it is
clearly weighted in favour
of the respondent as the applicants are on
their own version, heavily financially indebted. If any funds
were to be disbursed
to them, the chances of recovery would be very
remote. The applicants have an alternative remedy, which is
already at an
advanced stage. They should simply prosecute their
counterclaim in the pending action proceedings.
Urgency
[27]
In my view, insufficient factual evidence has been advanced by the
applicants which would justify
the relief sought by them being
adjudicated by this court on an urgent basis. Rule 6 (12) (b)
requires that an applicant
shall set forth explicitly the
circumstances which render the matter urgent and the reasons why
substantial redress could not be
afforded at a hearing in the
ordinary course. Mere lip service to this rule does not
suffice.
[30]
The applicants allege that if the matter is not heard as a
matter of urgency, they will lose their right to housing as their
primary residence will be sold on an auction. However, on their
own version, the applicants’ residence was already
under siege
by a secured creditor during the course of 2018.
[28]
The respondent reached out to the first applicant
[31]
in an attempt to arrive at an amicable solution to the current
impasse. Subsequently, a further approach was pioneered.
These approaches were in
line
with the threshold of the global fees paid to clinical technologists
for similar services at the time.
These
approaches too, were seemingly without success.
Costs
[29]
One of the fundamental
principles of costs is to indemnify a successful litigant for the
expense put through in unjustly having
to initiate or defend
litigation. The successful party should be awarded costs.
[32]
The last thing that already congested court rolls require is further
congestion by an unwarranted proliferation of litigation.
[33]
[30]
It is so that when awarding costs, a court has a discretion, which it
must exercise judiciously
and after a due consideration of the
salient facts of each case at that moment. The decision a court
takes is a matter of
fairness to both sides.
[34]
[31]
The court is expected to take into consideration the peculiar
circumstances of each case, carefully
weighing the issues in each
case, the conduct of the parties as well as any other circumstance
which may have a bearing on the
issue of costs and then make such
order as to costs as would be fair in the discretion of the court.
[32]
No hard and fast rules have been set for compliance and conformity by
the court unless there
are special circumstances.
[35]
Costs follow the event in that the successful party should be awarded
costs.
[36]
This rule should be departed from only where good grounds for
doing so exist.
[37]
[33]
Regrettably, the applicants have over a number of years been
inaugurating proceedings against
the respondent, with ostensible
impunity. In their first application, the applicants sought
payment of a portion of the first
applicant’s counterclaim in
the main action from the respondent on an urgent basis. This
was dismissed with costs.
The respondent is now faced with a
similar application. The current application is not urgent and
is merely a repetition
of the money judgment sought in the first
application and it squarely confronted by all of the defences raised
by the respondent.
[34]
It is so that the applicants are unrepresented and remain so
unrepresented. This in itself,
does not allow me to depart from
the
fundamental principles applicable to the
awarding of costs. A successful litigant must be indemnified for the
expense put through
in unjustly having to defend litigation.
Besides, the respondent is a medical scheme which is, inter alia,
funded by its
members who should not foot the bill for these
proceedings.
The respondent submits that the current
application has no merit, amounts to an abuse of the court process,
and contains a large
amount of irrelevant and scandalous allegations.
This, submits the respondent, calls for a punitive cost order.
On
this I agree.
Order
[35]
In all the circumstances of the matter, I would propose the following
order: -
1. That
the application is dismissed.
2. That the
first and second applicants, jointly and severally, the one paying
the other
to be absolved, shall be liable for the respondent’s
costs of and incidental to this application, on the scale as between
attorney and client, as taxed or agreed.
___________
WILLE, J
I
agree, and it is so ordered,
____________
CLOETE,
J
I
agree,
____________
KUSEVITSKY, J
[1]
The first applicant is a
registered nurse, married in community of property to the second
applicant (‘applicants’)
[2]
With reference to the relevant case number in the action proceedings
[3]
The first application
[4]
The respondent is the ‘Government Employees Medical Scheme’
[5]
The ‘Sievers’
judgment
[6]
During
July
2020
[7]
The second application
[8]
Now in the sum of R3 million
[9]
By way of an order granted on
the 26
th
of June 2020
[10]
The first applicant’s
services
[11]
The ‘dispute’
[12]
Act 131 of 1998 - (the ‘Act’)
[13]
The pleadings already closed
at the end of May 2019
[14]
During the course of August 2019
[15]
On the 23
rd
of
August 2019
[16]
The current application
[17]
Smith v Porritt and Others
2008 (6) SA 303
(SCA) at para 10
[18]
Aon SA (Pty) Ltd v Van Den
Heever
2018 (6) SA
38
(SCA) at para 40
[19]
Ekurhuleni Metropolitan
Municipality v Germiston Municipal Retirement Fund
2017 (6) BCLR 750
(CC) at para 31
[20]
Henderson v Henderson
[1843] EngR 917
;
(1843) 3 Hare 100
at 114-115,
[1843-1860] All ER Rep 378
at 381-2
[21]
African Farms and Townships Ltd v Cape
Town Municipality
1963(2) SA 555 (A) at 564A
– E
[22]
Le Roux v Le
Roux
1967 (1) SA 446 (A)
[23]
Samela J, struck the
matter from the roll for want of urgency on the 3
rd
of December 2020
[24]
Caesarstone SdotYam Ltd v The World of
Marble and Granite 2000 CC and others
2013
(6
) SA 499 (SCA)
[25]
Williams v Shub
1976
(4) SA 567 (C)
[26]
Room Hire Co (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1162
[27]
Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E - 635C
[28]
Room Hire Co (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1168
[29]
Setlogelo v
Setlogelo
1914 AD
221
at 227
[30]
Luna Meubel Vervaardigers (Edms) Bpk v
Makin
1977 (4) SA 135
(W) at 137 - F
[31]
During the course of 2018
[32]
Union Government v Gass
1959 4 SA 401 (A)
413
[33]
Socratous v Grindstone
Investments
(149/10)
[2011] ZASCA 8
(10 March 2011) at [16]
[34]
Intercontinental
Exports (Pty) Ltd v Fowles
1999
(2) SA 1045
(SCA)
at 1055F- G
[35]
Fripp v Gibbon &
Co
1913 AD
354
at 364
[36]
Union Government v Gass
1959 4 SA 401 (A)
413.
[37]
Gamlan Investments (Pty)
Ltd v Trilion Cape (Pty) Ltd
1996 3 SA 692
(C)