L v MEC for Health, Gauteng (17077/2012) [2014] ZAGPJHC 337; 2015 (3) SA 616 (GJ) (26 November 2014)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 337
|

|

L v MEC for Health, Gauteng (17077/2012) [2014] ZAGPJHC 337; 2015 (3) SA 616 (GJ) (26 November 2014)

SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 17077/2012
DATE:
26 NOVEMEBR 2014
In
the matter between:
V………
E…….
L……]
......................................................
Plaintiff
And
THE
MEC FOR HEALTH, GAUTENG
............................
Defendant
JUDGMENT
ROBINSON
AJ
TABLE OF
CONTENTS
A.
INTRODUCTION 3 - 4
B.
THE LITIGATION TIME LINE 4 - 10
C.
THE RULE NISI AFFIDAVITS 11 - 20
D.
EFFECT OF THE EVIDENCE 20
E.
SUBMISSIONS ON BEHALF OF THE DEFENDANT 21 - 23
F.
DEFENDANT’S BLIND RELIANCE ON DR MASHAMBA 23 - 27
G.
COSTS DE BONIS PROPRIIS? 28 - 32
H.
THE DUTY ON THE STATE IN LITIGATION 32 - 34
I.
COURT PRONOUNCEMENTS ON THE STATE ATTORNEY 34 - 45
and PUBLIC OFFICIALS
J.
CONCLUSION 45 - 46
A.
INTRODUCTION
1.
On 16 October 2014 this court made an order, declaring the defendant
100% liable for the plaintiff’s damages arising out
of the
birth with disability of her son, M…….. P……….
L………. and ordering
the defendant to pay costs on
an attorney and client scale. It also issued a rule, calling upon the
defendant to show cause on
Tuesday 28 October 2014, with affidavits
filed by 23 October 2014,
1.1.
why he (it should have been she) should not be held personally liable
de bonis propriis on the attorney and client scale, jointly
and
severally with the defendant, for the costs;
1.2.
alternatively, and should she be of the view that she should not be
held personally liable, the defendant was called upon to
identify
such persons in the Department of Health of Gauteng, as well as such
persons in the office of the State Attorney, who
should be held
personally liable for the costs as well as the reasons why they
should be so held liable.
2.
The affidavits contemplated in paragraph 136 of the order, being only
filed on 27 October 2014, were accompanied by an application
for
condonation for the late filing thereof. There was no opposition from
the applicant and the affidavits were admitted. Argument
was
presented to me on the issues arising from the rule nisi order on 28
October 2014 by Mr Latib appearing on behalf of the defendant.
There
was no appearance for the plaintiff.
3.
Four persons deposed to affidavits in response to the rule nisi.
These are:
3.1.
Mr Ezekiel Matlou, an attorney in the employ of the State Attorney
and the person appointed to deal with this matter on behalf
of the
defendant;
3.2.
Mr Jabulani Macheke, a senior legal administrative officer employed
in the legal services section of the department of health,
Gauteng;
3.3.
Dr Kgoposo Cele, a medical practitioner employed as a medico –
legal advisor by the department of health, Gauteng; and
3.4.
Ms Qedani Dorothy Mahlangu, the MEC for the department of health,
Gauteng.
B.
THE LITIGATION TIME LINE
4.
The litigation time line is instructive. I list it below.
5.
Summons was issued on 21 April 2012.
6.
Notice of intention to defend was delivered on 31 May 2012.
7.
Also on 31 May 2012 the defendant delivered a notice in terms of rule
36(4), calling upon the plaintiff to make available medical
reports,
hospital records, X – ray photographs or other documentary
information of a like nature relevant to the assessment
of the
damages or compensation in respect of bodily injury alleged to have
been suffered by the plaintiff. The plaintiff’s
attorneys
responded by delivering what appears to be the neonatal records on 18
June 2012.
8.
The plaintiff placed the defendant under bar by notice delivered on
15 August 2012.
9.
The defendant delivered its plea on 22 August 2012.
10.
On 20 September 2012 the plaintiff delivered its 35(1) notice. This
was responded to by a discovery affidavit delivered by the
defendant
on 20 February 2013. Because the content of the discovery affidavit
is of relevance in this matter, some reference is
made to its
content.
10.1.
Mr Macheke went on oath to state that the defendant has “in his
possession or power documents relating to the matters
in question in
this suit set forth in the First and Second Schedules hereto.”
Also under oath was claimed that neither the
defendant nor his
attorney “now or ever had in his possession, custody or power
or in the possession, custody or power of
any person on his behalf,
any documents or copies or extracts from any documents relating to
the matter in question in this action
other than and except the
documents set forth in the First and Second Schedule annexed
hereto.”
10.2.
That was a startling claim to make, considering that the First
Schedule consisted of
10.2.1.
all pleadings and notices under case 12/17077;
10.2.2.
three letters, being correspondence between the plaintiff’s
attorney to the defendant and her attorneys respectively.
10.3.
The Second Schedule lists matters claimed to be confidential and
makes no mention of hospital records. I do not understand
how the MEC
for Health can be said not to have hospital records of state
hospitals under her jurisdiction under her power or control.
The
issue was not explained.
11.
A notice to attend a rule 37 conference was delivered on 20 September
2012.
11.1.
A pre - trial conference was held on 30 May 2013.
11.2.
At this meeting Mr Matlou undertook to respond to the further issues
raised in the rule 37(4) notice by 7 June 2013. He did
not do so.
11.3.
The plaintiff also indicated that it would send the defendant a
written list of documents it required from the defendant,
and also
listed those documents at the meeting. The documents are clearly
relevant. I list them below. The defendant undertook
to indicate to
the plaintiff by Friday, 7 June 2013 when it “will be able to
respond to this request.” It does not
appear that it did so,
considering the plaintiff had to bring an application to compel more
than a year later.
12.
The plaintiff’s rule 35(3) notice was delivered on 27 July
2013. It requested:
12.1.
results of tests performed on Menzi;
12.2.
antenatal and labour – related records of the plaintiff
relating to the birth of Menzi Lushaba;
12.3.
images and/or reports of the CT scan of Menzi’s brain performed
and requested on 28 August 2009.
The
plaintiff may have been forgiven expecting the defendant to discover
these documents, particularly the antenatal and labour
–
related records of the plaintiff. The indifference of the defendant’s
advisors to these documents is one of the staggering
features of this
case.
13.
On
1 August 2013 the summary of the opinion of Dr Arend van den Heever
(the plaintiff’s expert) was delivered to the offices
of the
State Attorney. This is the report that was contained in the
Liability Bundle and in which Dr van den Heever lists the facts

determinative of this case. The defendant’s advisors did not
brief Dr Mashamba with a copy of this report.
14.
The plaintiff delivered her so - called “Liability Bundle”,
containing the medical records (including the crucial
records of
events on 30 June 2000 from 12h00 preceding and of the birth) and
including the report of Dr van den Heever, to the
office of the State
Attorney on 23 August 2013 and filed it in court on that date.
15.
Mr Matlou only instructed Dr Mashamba, the defendant’s expert
witness, to provide an expert opinion on 4 September 2013,
with the trial set down for hearing on 13 September 2013.
15.1.
The letter of instruction to Dr Mashamba requests him to advise
whether, in his opinion, there was negligence by the medical
staff
that treated the mother of the child. It encloses the neonatal
hospital records. For reasons not explained, neither the antenatal

records; the labour records; the Liability Bundle nor the report of
Dr van den Heever, containing the antenatal and delivery records,

were provided to Dr Mashamba. Dr Mashamba was inadequately briefed as
a result of which he was not placed in a position to advise

adequately and meaningfully on the merits.
15.2.
Despite being hampered by the absence of essential evidence, Dr
Mashamba provided what passes for his report on 9 September
2013.
15.3.
Mr Matlou and counsel consulted with Dr Mashamba on 11 September
2013, evidently sans the benefit of the crucial records.
Despite the
trial being set down for 13 September 2013, Dr Mashamba’s
report was not provided to the plaintiff. No explanation
is provided
for this.
16.
Because of the unavailability of the plaintiff’s experts, the
trial of 13 September
2013 was postponed
sine die. It was subsequently set down for 7 October 2014.
17.
The defendant’s expert report was provided to the plaintiff’s
attorneys on 3 October 2014.
17.1.
In explanation of the late delivery of the defendant’s expert
report, Mr Matlou says that he instructed the messengers
at the
offices of the State Attorney to deliver the defendant’s rule
36(9)(a) and (b) notice in respect of Dr Mashamba’s
evidence on
11 March 2014.
17.2.
Mr Matlou appears not to have given further attention to the matter,
as he only noticed on 3 October 2014, being the Friday
before the
commencement of trial, that the defendant’s expert notices were
not reflected in the index to the plaintiff’s
bundle.
Ostensibly it did not occur to him to consult Dr Mashamba afresh to
obtain his views on the report of Dr van den Heever,
nor to concern
himself with the matter of a joint expert minute. The discovery that
the report had not been filed caused him to
prepare a new notice
which he sent to the plaintiff’s attorneys on 3 October 2014
with a copy of the report.
18.
On 26 June 2014 the plaintiff’s attorneys sent a telefax to the
State Attorney, requesting a response to the rule
37 questions, Mr.
Matlou not having made good on his promise to reply by 7 June 2013.
18.1.
Mr. Matlou did not respond to the fax of 26 June 2014.
18.2.
The plaintiff’s application to compel the defendant to respond
to the rule 37 questions was delivered on 30 July 2014.
This,
likewise, did not elicit a response from Mr. Matlou.
18.3.
The application to compel was heard on 13 August 2014, which led to
the order of Makume J, compelling the defendant to respond.
18.4.
The defendant’s answer to the rule 37 questions was eventually,
more than a year after the promised date, delivered
to the plaintiff
on 18 August 2014. No acceptable explanation was provided for the
failure to respond
timeously,
nor for the reason why the plaintiff was obliged to turn to the Court
to compel the defendant to reply. Mr Matlou says
that he was “dealing
with a number of matters and forgot to attend to the reply”.
18.4.1.
This answer is unsatisfactory. Attorneys deal, routinely, with a
number of matters. But even if human error excuses
the forgetfulness,
it does not explain Mr Matlou’s failure to respond to the
request for compliance, received on 26 June
2014, nor to the
application to compel which was, on his own version, received on 30
July 2014. There was, in my mind, no reason
to put the plaintiff to
the expense of having to go to court to compel a response from the
defendant.
18.4.2.
Mr Matlou argues that the Rules impose no time frame on a response
and that the plaintiff made no attempt to obtain
a response before
the 13 September 2013 set down. It is not clear what point Mr Matlou
wants to make with these statements. If
the suggestion is that these
considerations render his failure to make good on his undertaking to
respond by 7 June 2013, or that
it was incumbent upon the plaintiff
to drag the defendant to court to ensure compliance with each step
preparatory to trial, then
that is rejected.
18.4.3.
Whilst
it is so that rule 37 does not envisage a formal request to which
there must be a formal reply,
[1]
the fact remains that Mr Matlou
undertook
to respond to the queries and to do so by a certain date. If he
wanted to take a point that the queries should have been
contained in
a request for further particulars for trial, or that the request was
filed out of time, thereby prejudicing the defendant
in his
preparation for the pre - trial, then he should have done so at the
time. In any event, the purpose of a rule 37 conference
is “primarily
to curtail the duration of a trial, narrow down issues, cut costs and
facilitate settlements. Parties are required
to attempt, in a bona
fide manner, to reach settlement either on issues which could serve
to shorten the proceedings or resolve
the main issues.”
[2]
The queries raised by the plaintiff were meaningful and required an
answer. Nothing prevented the defendant from calling a further
pre –
trial conference to ensure a meaningful discussion of its answers to
the questions put by the plaintiff.
19.
On 23 July 2014 (more than a year after the delivery of the request)
the plaintiff delivered her rule 35(3) application to compel.
The
application refers to the fact that not only did the defendant fail
to respond to the rule 35(3) notice of 27 June 2013, it
failed to
respond to two letters sent by the plaintiff’s attorneys on 1
August 2013 and 30 May 2014 respectively. The defendant
did not
explain this lack of responsiveness.
19.1.
The defendant’s response to the rule 35(3) application merely
has Mr Macheke claiming, under oath, that he does not
have the
documents and that the defendant does not know whether such documents
exist in regard to the plaintiff. Again, a startling
manner of
dealing with the task at hand. Clearly, the antenatal and labour
records must have existed, especially if the evidence
of both experts
as regards medical record keeping is taken into account. As it
happens, we know the documents existed, as the plaintiff
produced
them, with the hospital she attended the likely, if not the only,
source of those documents.
20.
The trial was set down for hearing on 7 October 2014. On that day the
matter had to stand down as the joint minutes between
the experts had
not been prepared, for obvious reasons. In the event the trial could
only commence on 9 October 2014. The failure
by the defendant and its
representatives to comply with the pre – trial procedures had
the regrettable consequence that two
court days were wasted. The
practise directions contemplate, for obvious reasons, that expert
reports should be exchanged well
in advance of the trial date. It is
of the deepest concern that the State Attorney and the defendant’s
advisors did not think
fit to honour the rationale for an early
meeting between the experts.
C.
THE RULE NISI AFFIDAVITS
21.
The contents of each of these affidavits are dealt with below in so
far as they are
relevant.
Mr
Ezekiel Matlou
22.
Mr Matlou is an attorney with right of appearance in the High Court.
He practices as an attorney at the offices of the
State Attorney in
Market Street, Johannesburg. The State Attorney is the attorney of
record for the defendant in this matter.
23.
Mr Matlou admits to being “involved in the decision to take
this matter to trial” and his affidavit professes
to address
the issue of “whether it was unreasonable for the defendant to
have contested the issue of negligence in this
matter”.
24.
Mr Matlou further addresses various instances where the State
Attorney failed to comply with time periods. These include:
24.1.
failure to comply with the plaintiff’s request for further
particulars to the extent that the plaintiff was obliged
to obtain a
court order compelling the defendant so to comply;
24.2.
failure to file the defendant’s expert summary timeously (it
was made available the Friday before the trial commenced);
24.3.
Mr Matlou’s failure to attend at the trial;
24.4.
the failure to brief defendant’s counsel properly, such that he
did not have a copy of expert reports.
25.
Mr Matlou argues that the joint minute between Drs van den Heever and
Mashamba “significantly narrowed the issues
in this matter”.
This is of course, the precise point of these joint minutes and the
very reason why it should be prepared
timeously and not during the
time set aside for trial, when expensive legal teams are waiting in
the wings. His view is that the
disagreement between the experts was
confined to (1) the impact of early delivery on the outcome and (2)
whether a caesarean section
should have been performed as soon as
possible after 12h00. But there is no relevant disagreement between
the experts. The experts
agreed that a caesarean section ought to
have been done “ASAP after 12h00 most likely with a better
outcome”. The only
difference is that Dr Mashamba did not agree
that early delivery would have guaranteed a better outcome but that
is not the test.
An earlier meeting between the experts would and
ought to have had the effect of having the defendant’s advisors
realise
this significant fact.
26.
As regards the reasons for the defendant’s opposition to the
plaintiff’s claim on the merits Mr Matlou argues that
both Dr
Cele and Dr Mashamba were of the view that the plaintiff was treated
reasonably and that the defendant had a good defence.
These are, of
course, conclusions. One searches in vain for the reasons for these
conclusions which were reached in the absence
of the relevant medical
records. The expert report of Dr Mashamba discloses no defence on the
merits. When I requested Mr Latib
during argument to indicate the
nature of the defence, he could not do so. This is not to reflect
negatively on Mr Latib. His inability
to do so is due to the absence
of a defence. Mr Latib was constrained to submit that it was not
incumbent upon an attorney such
as Mr Matlou to question the bald
assertion of experts such as Dr Mashamba that there is a defence.
The argument was also
made that the extent of the plaintiff’s
claim of R17 million obliged the defendant to defend the case, also
on the merits.
I cannot agree with either submission. It is certainly
essential that attorneys satisfy themselves that the reasons for an
expert
opinion support the expert conclusion to ensure that it would
be defensible during trial. Further, the mere fact of a large quantum

is no reason to defend a claim on the merits in the absence of a
defence.
27.
Mr Matlou explains the failure of an attorney to attend during the
trial by him having to attend, after the first half
of the first day
of the trial, to “family commitments as a result of the passing
of my uncle” on 10 October 2014. His
absence from court on 9
October 2014 is due to him having to prepare for a matter which was
to be heard on 10 October 2014.
Mr
Jabulani Macheke
28.
Mr Macheke, a senior legal administration officer employed by the
defendant, is responsible for this matter on behalf
of the plaintiff.
The Legal Services department deals with all legal issues relating to
the department. Among others, it requests
the head of the institution
where the incident in question occurred, to provide copies of the
claimant’s medical records
related to the incident. His
affidavit addresses the issues around the consideration or otherwise
on the part of the defendant
of the decision to defend the issue of
liability. He also describes the process followed to determine
whether the matter should
be defended.
29.
Upon receipt of the medical records, consultation with the relevant
employees (doctors and nurses) takes place, with the
legal
administrator, the medico – legal advisor to legal services
(being a qualified medical doctor), the attorney attending
to the
matter at the State Attorney and counsel (if available) attending to
the
consultation.
30.
Mr Macheke did not deal with or explain his statements under oath
that no medical records were in the possession or control
of the
defendant in this case, nor
did
he explain why or how the consultation could have taken place in any
meaningful manner in the absence of the relevant medical
records. One
can only speculate as to the purpose of such a consultation and what
reliance could be placed on what employees said
when they did not
have the benefit of the relevant records.
31.
The legal administrator instructs the State Attorney but remains
involved and is almost always present at court when the matter

proceeds. The MEC is not involved in the decision to proceed or not.
32.
Following
the consultation, the medico – legal advisor, the legal
administrator and the Deputy Director General decide whether
the
matter should be defended or conceded. The decision is revisited upon
receipt of the advice of medical experts. Again, Mr Macheke
did not
trouble himself to explain how this was done in this case in the
absence of
indispensable documentation
.
He is, after all, on oath as stating that neither the defendant nor
his (her) attorney “ever had in his possession, custody
or
power or in the possession, custody of power (sic)  of any
person on his behalf, any documents or copies or extract from
any
documents relating to the matter in question in this action other
than and except the documents set forth in the First an Second

Schedule hereto.” As I demonstrate elsewhere, neither the First
nor the Second Schedule lists a single medical record. When

specifically asked for the antenatal and delivery records, he went on
oath that he did not know of their whereabouts.
33.
As far as this case is concerned, Mr Macheke testifies that Dr Cele,
a medico – legal advisor of the defendant and
he consulted with
the employees involved in this matter at the Charlotte Maxeke
Johannesburg Academic Hospital. After consultation
and after further
consideration of the facts, a decision was taken to proceed to defend
the matter. Again, it is not explained
how this happened in the
absence of the relevant documents nor did he allude to the exact
process followed whereby the decision
was reached.
34.
Mr Macheke nevertheless persists that his decision that the claim
should be opposed on the merits was an informed one.
He states:
“
During
September 2013, Mr Matlou who was the attorney handling this matter
at the State Attorney, forwarded Dr Mashamba’s
report to me. Mr
Matlou, together with counsel, consulted Dr Mashamba in Pretoria. In
a subsequent consultation that I had with
Mr Matlou, he indicated
that Dr Mashamaba (sic) was confident that the defendant could
successfully defend this claim. This confirmed
Dr Cele and my view
that the matter was defendable.
I
therefore fully considered the merits of the case and took a decision
to proceed to defend the matter. I submit that the decision
to defend
was a rational and reasonable one. A decision not to defend this
matter in light of the medical opinion would have been
patently
unreasonable. I would have had no basis for recommending that
defendant settle the claim.
I
point out that I do not have any medical expertise. I therefore rely
on medical expert opinion before a deciding (sic) to settle
or to
proceed to trial. In this case, I was given medical opinion that
clearly supports a reasonable defence and there was no reason
for me
not to accept such opinion.”
35.
Neither Mr Macheke nor Dr Mashamba were in a position to  “fully
consider(ed) the merits of the case”.
The defendant only
availed itself and its expert of the neonatal records. A full
consideration was not possible in the absence
of antenatal and labour
records. The damage to Menzi did not occur after his birth. It
occurred antenatally. Even for a layperson,
the facts of this case
are not insurmountable.
They
are relatively crisp.
35.1.
A foetus needs the oxygen supplied through the wall of the uterus.
When the placenta starts moving away from that life-giving
source,
danger lurks. The oxygen supply is threatened. Once a certain
deprivation of oxygen occurs, the damage is irreversible.
35.2.
From there the next step is self-evident. The process of the placenta
separating from the uterine wall must not be permitted
to continue.
The
baby must be gotten out without delay.
36.
For this reason it would, as a matter of basic logic, be evident to
professional laypersons, such as attorneys and legal
advisors (and
much more so for the medical advisor) that what occurred pre –
birth was of the utmost importance. And yet
all three professionals,
Mr Matlou, Mr Macheke and Dr Cele, remained indifferent to the ante
natal and labour records. No credence
can, regrettably, be given to
the protestations of either Mr Matlou, Mr Macheke or Dr Cele, that
the matter was “fully considered”.
37.
Mr Macheke expresses the view that it was appropriate for the
defendant to deliver Menzi two hours and fifteen minutes
after the
plaintiff arrived at the hospital. But Dr Jeebodh got Menzi out in
just over 30 minutes of her first encounter with the
plaintiff. Dr
van den Heever says he needs just over 30 minutes to get a baby out
in an emergency. No action (or omission) that
permitted Menzi to
progress to a severely brain damaged state in the care of the
hospital could
properly be termed
“appropriate”.
Dr
Kgopiso Cele
38.
Dr Cele is a medical practitioner employed as a medico – legal
advisor at the defendant. He was, with Mr Macheke,
involved in the
decision taken on behalf of
the
defendant to defend the plaintiff’s claim.
39.
Dr Cele provides a similar exposition to that of Mr Macheke of the
procedure followed to reach a decision to defend a
claim or
otherwise. The same absence of
detail
characterises his affidavit.
40.
Dr Cele says that, in this case, he and Mr Machele (presumably
Macheke) consulted the employees. Following consideration
of what
they had to say and consideration of the hospital record, he
recommended that the defendant defend this claim. His recommendation

was based on his assessment of the matter at that stage. It was
influenced by the following factors:
40.1.
the plaintiff’s symptoms at 12h00 suggested that she had been
bleeding for an unknown period of time;
40.2.
the heart rate was 150 and irregular, with it not being known whether
there were decelerations;
40.3.
at 13h00, upon reassessment and the performing of a sonar, it was
found the plaintiff had abruption and a caesarean section
was
promptly booked;
40.4.
the baby was delivered at 14h20 by caesarean section. The time frame
of 2 hours and 20 minutes after arrival is acceptable
and within the
norms and standards of a public hospital. WHO standards recommend
that an emergency caesarean section be done within
45 minutes to an
hour after a decision to perform a caesarean section is made.
Considering that the caesarean was done 1 hour and
20 minutes after
the decision was made, the performing of the caesarean was reasonable
in
the circumstances;
40.5.
it is unclear when the abruption occurred. Brain damage could have
started at that time. Cerebral palsy is a known sequelae
of
abruption.
41.
I am perplexed by the above. Dr Cele does not identify the hospital
record considered, but it could not have been the
antenatal or
delivery records. Antenatal and delivery facts such as those referred
to by Dr Cele are only evident from the antenatal
records which Mr
Macheke on behalf of the defendant went on oath to say he did not
have (and which it did not provide to Dr Mashamba).
This was both
only in the rule 35(1) and 35(3) applications. I conclude that Dr
Cele could not have been in possession of the antenatal
or delivery
records and thus he could not have had access, at the time of
decision making, to those facts upon which he now says
he relied to
form his opinion.
42.
Dr Cele’s statement cannot be relied upon and is unsupported by
the facts of this case:
“
I
was therefore of the view that based on the sequence of events, the
defendant had a reasonable defence to the claim. In my view
the
plaintiff was managed appropriately.
My
recommendation to the department was to defend this matter. This
recommendation was bolstered by Dr Mashamba’s view that
the
defendant had good prospects of success in the matter.”
43.
Had he read the report of Dr Mashamba with any degree of attention,
he would have noticed that Dr Mashamba (1) did not
express an opinion
on the absence or presence of negligence (2) listed no reasons for
any such opinion and (3) could not form such
an opinion because he
did not have the relevant records. I deal with Dr
Mashamba’s
report in some detail at a later stage in this judgment.
44.
In any event Dr Cele’s exposition of the facts of the case:
44.1.
ignores the proven and accepted facts.
44.1.1.
No sonar was performed at 13h00. That only happened around 13h45 when
Dr Jeebodh came on the scene.
44.1.2.
At 13h00 the recommendation by the attending doctor was that
plaintiff should be reassessed in four hours. Both experts
considered
that unacceptable in the joint minute.
44.1.3.
No caesarean was booked at 13h00. In any event, “booking”
a caesarean is not what was required. Doing
the caesarean is what was
required at 12h00. On that too, both experts were agreed. At the time
she presented at the hospital,
the plaintiff’s symptoms were
such that abruption was to be inferred. On that both experts were
agreed. That means that,
at 12h00, the diagnosis of abruption should
have been made and the caesarean performed without delay. On that
too, the experts
are agreed.
45.
I do not speculate on matters or theories not in issue in this case,
such as the capacity of the hospital.
46.
Dr Cele’s opinion further:
46.1.
ignores, in its entirety, the expert opinion of Dr van den Heever,
the plaintiff’s expert witness. Indeed, it appears
that Dr Cele
paid no heed to the opinion of Dr van den Heever in forming his
opinion as to whether to defend.
46.2.
ignores the fact that, at 150 bpm, the foetus would not have been
brain damaged and abruption would be at a stage of 1 –
2 % of
progression. This evidence by Dr van den Heever stands unchallenged.
His speculation about whether there were decelerations
or otherwise
or to what stage the abruption had advanced by the time the plaintiff
arrived at the hospital is all irrelevant. The
heartbeat of 150 tells
us that Menzi arrived at the hospital with some considerable hope for
his condition, provided the hospital
did the necessary without delay.
46.3.
provides no explanation for the failure to diagnose the plaintiff at
12h00, when the agreed medical view is that her symptoms
were
indicative of abruption and that abruption presents an extreme
emergency.
The
MEC
47.
Ms Quedani Dorothy Mahlangu testified that, as the Member of the
Executive Council for the Department of Health, Gauteng, she
is
constrained to rely on the divisions with her department. In this
case this is the Legal Services department, where a legal

administration officer is appointed to handle a specific matter,
working
with the department’s medical advisor.
48.
Ms Mahlangu is of the view that Mr Macheke and Dr Cele followed
established departmental procedure and that their decision to
proceed
was confirmed by Dr Mashamba. It was not for the department, so she
says, to have questioned Dr Mashamba’s view that
there was a
defence. “To have expected the defendant to have gone behind
the evidence of Dr Mashamba is plainly unreasonable.”
D.
EFFECT OF THE
EVIDENCE
49.
Both the legal advisor, Mr Macheke, and the medico – legal
expert, Dr Cele, claim to have consulted with the employees
in
question at the Charlotte Maxeke Hospital with knowledge of the
relevant facts, having perused the hospital records. Clearly,

considering the repeated assertions under oath that the relevant
documents were not to hand and the failure to provide them to
Dr
Mashamba, they could not have done so.
50.
Not one witness claims to have had any regard to the evidence of the
plaintiff’s expert witnesses, nor to the Liability
Bundle, nor
do they make any effort to explain the joint expert report.
51.
The heavy reliance placed on the view of Dr Mashamba that there was a
defence to a charge of negligence is unfounded.
Dr Mashamba had no
access to a single relevant fact. His report discloses no ground of
defence to negligence.
E.
SUBMISSIONS ON
BEHALF OF THE DEFENDANT
52.
Mr Latib, on behalf of the defendant, filed heads of argument on 13
November 2014, addressing the rule nisi issues. This
court has
already found the defendant to have been negligent in its treatment
of the plaintiff. The issue before it now is whether
the defendant
had a rational, reasonable ground on which to base its denial of
negligence and whether its conduct otherwise was
such that costs de
boniis propriis should be awarded. Before dealing with the
submissions I note that Mr Latib was not the counsel
appearing for
the plaintiff at the trial and that he did not have the benefit of a
full transcript of the proceedings. My comments
in this case, in so
far as they criticise the defendant’s case, are not to be read
as a criticism of Mr Latib.
53.
The defendant submits that the decision to defend the claim was
reasonable, rational and proportional. That this decision
was taken
in ignorance of the relevant facts is not addressed.
54.
The defendant now accepts that the plaintiff presented at 12h00 with
symptoms such that a diagnosis of abruption placentae
had to be
excluded. It also accepts that an abruption constitutes an emergency.
Its case is that its employees, having regard to
their qualification
and experience, acted reasonably in arriving at the diagnosis of
abruption and performing the caesarean section
when it did. The
defendant, however, presented no evidence to support any defence that
the diagnosis could nor should not have
been made when the plaintiff
presented at the MOU. No evidence was led as to the qualification or
experience of any employee other
than Dr Jeebodh.
55.
The
defendant submits further that it is clear from the evidence that Dr
Manga did not have the skill to perform a caesarean section
or an
ultrasound. But no such evidence was led. Indeed, the evidence was
that certain interns are authorised to perform caesareans
but that
one did not know whether Dr Manga was one. The submission is,
accordingly, unfounded. Inferences about her conduct and
failure to
act cannot be drawn in favour of the defendant where she was
available to testify and not called. Equally unfounded
is the
submission that Dr Manga “plainly treated the plaintiff’s
condition as an emergency” in circumstances
where she suggested
the plaintiff’s condition be reviewed in four hours, did not
apply a drip, did not apply a CTG and did
nothing but prescribe
analgesics.
[3]
Both experts noted that to be unacceptable.
[4]
56.
Mr Latib acknowledges the following, as he was duty bound to do based
on the facts of this case:
“
It
is plain that the plaintiff’s presenting symptoms at 12h00 were
indicative of an abruption and provided the plaintiff was
seen by a
doctor, urgent steps were required to diagnose and treat the
abruption.”
[5]
[own emphasis]
“
Had
Dr Manga seen the plaintiff at 12h00, she surely would have suspected
an abruption and acted with the necessary urgency.”
[6]
57.
I fail
to comprehend why this admission (which is consistent with the logic
of the facts of this matter) on behalf of the defendant
should not be
the end of this enquiry. Clearly the defendant agrees that the
plaintiff presented, objectively speaking, with an
emergency. The
defendant can surely not reasonably suggest that its failure to deal
with an emergency presented to it excuses its
failure to deal with
the emergency. Emergency medical care provided by the defendant
should not be a lottery.
[7]
It is for the defendant to ensure that such care be provided to
members of the public such as the plaintiff and her unborn son.
I
repeat that the defendant advanced no reasons to defend its failure
to do so and no basis to theorise about its failure exists.
F.
DEFENDANT’S
BLIND RELIANCE ON DR MASHAMBA
58.
As regards the defence of the defendant’s blind acceptance of
the opinion of Dr Mashamba that it had a defence of
negligence, the
following must be noted.
59.
Dr Mashamba’s expert report which was, according to the
defendant, provided to it in September 2013, consists of
just more
than one page. It could easily be fit into one typewritten page with
smaller typescript.
60.
The report notes that only the neonatal records were supplied. That
ought to have been enough to have Messrs Matlou and
Macheke and Dr
Cele supply their
expert
with the records (which they had) to ensure a meaningful report.
During his evidence in chief Dr Mashamba confirmed
that the hospital
records he
received
“were deficient of the antenatal card and the deliveries”.
[8]
61.
Because of the importance  (and brevity) of the report, I quote
its contents in full:
EXPERT
opinion on Vuyisile Eunice Lushaba Documents supplied was (sic) only
the neonatal records. Unfortunately there are no antenatal
records
supplied.
Neonatal
records
Vuyisile
was admitted at the Johannesburg hospital with a problem of abruption
placenta and delivered Menzi on the 30
th
June 2000 who had
APGAR score of 4/10 after 1 minute and 8/10 after 10 minutes by
caesarean section. The birth weight was 2860g
at an estimated
gestational age of 35 weeks.
At
birth Menzi had birth asphyxia with severe metabolic acidoisis and
hypoxic ischaemic encephalopathy [HIE]. By day 7 of life Menzi
had
developed fits and was on treatment. Cranial sonar done on day 7 of
life revealed findings suggestive of early atrophy. The
decision to
repeat after 1 week was taken. Menzi was unable to sit at 7 months of
age and a diagnosis of Cerebral Palsy was emphasized.
Summary
of report supplied
Menzi’s
mother delivered at the Johannesburg hospital by caesarean section
because she had abruption placenta. Menzi was born
with asphyxia with
severe metabolic acidosis and developed HIE.
Comment
Abruption
placenta is a serious complication during pregnancy and occurs when
the placenta separates from the uterine wall. It puts
both the mother
and the fetus (sic) in danger. It leads to deprivation of the fetus
(sic) of oxygen and an lead to Cerebral palsy.
Perinatal mortality
was found to be 119 per 1000 births with Abruption placenta compared
with 8.2 per 1000 among other births and
this is a 25 – fold
higher mortality with Abruptio placenta. [Cande V Ananth, Allen J
Wilcox: Am J Epidemiology vol 153 no
4 2001: Placental Abruption and
perinatal mortality in the United States]. Abruption placenta was
responsible for Cerebral palsy
in one quarter of all cases determined
to be due to antenatal and/or intra – partum hypoxic conditions
[Yamada T, Yamada
T, Morikawa M, Minakami H; Early Hum Dev.
2012Nov;88{11}: Clinical features of Abruptio placenta as a prominent
cause of Cerebral
palsy].
Conclusion
With
such serious complications following Abruptio placenta the outcome of
Menzi is strongly associated with the complication that
he mother had
just before delivery.
Dr
T J Mashamba
62.
Apart from telling the reader that Menzi Lushaba had cerebral palsy
and that this is an extremely serious condition which results
from
abruption placenta, the report is, as an expert opinion, meaningless.
No basis is established on which defendant’s negligence
is to
be disputed unless one is to accept that abruption is fatal the
second it sets in and that nothing is to be done about it,
but that
is not what the statistics quoted by Dr Mashamba suggest.
63.
An expert’s opinion
“
represents
his reasoned conclusion based on certain facts or data, which are
either common case, or established by his own evidence
or that of
some competent witness. Except possibly where it is not controverted,
an expert’s bald statement of his opinion
is not of any real
assistance. Proper evaluation of the opinion can only be undertaken
if the process of reasoning which led to
the conclusion, including
the premises from which reasoning proceeds, are disclosed by the
expert.”
[9]
[own emphasis]
6.4
The defendant submits as follows.
6.4.1
Dr
Mashamba, having not been briefed with all the records, was unaware
that the plaintiff commenced her interaction with the hospital
in the
MOU and that a diagnosis of abruption was made only at 13h45. His
agreement to the joint minute was, accordingly, based
on incorrect
facts.
[10]
64.2.
“If
the plaintiff was in the labour ward at 12h00, she would already have
been under the care of medical doctors. There would
therefore have
been no reason not to have arrived at a speedy diagnosis of an
abruption and not to have performed a caesarean section

urgently.”
[11]
64.3.
Therefore
Dr Mashamba should not be held to his agreement in the joint minute
that the caesarean should have been performed as soon
as possible
after 12h00.
[12]
65.
Some
point is sought to be made in the heads that the defendant was not
permitted to file affidavits beyond those of 27 October
2014. The
claim appears to be that Dr Mashamba could then explain how he
arrived at a conclusion based on an incomplete knowledge
of the
facts. But the explanation was known during the trial and is evident
from Dr Mashamba’s report. He was in possession
only of the
neonatal records. He only received a copy of Dr van den Heever’s
report when the joint minute was made.
[13]
One does not comprehend how he purported to provide an opinion on
negligence in the absence of those records. They were vital
to
the opinion of Dr van den Heever and are vital to the question of
negligence.
66.
The
defendant argues, finally, on this point that, if it were accepted
that its expert did not agree that a caesarean section should
have
been performed after 12h00, then it follows that the order for the
defendant to provide submissions on whether it had a duty
to
interrogate its experts opinion that the defendant had a defence,
falls away. The defendant had “a perfectly reasonable
defence”
to the plaintiff’s claim.
[14]
This argument forgets that Dr Mashamba had no knowledge of the
plaintiff’s presence at the MOU at the time that the decision

to litigate was made. The issue is, in any event, irrelevant. The
plaintiff was at the hospital, presented with an
emergency,
and ought to have been treated as such.
67.
The effect of the discovery by Dr Mashaba that the plaintiff started
off at the MOU is in any event murky. There was no
suggestion during
his examination in chief that he was retreating from the joint
minute. Most importantly, Dr van den Heever’s
evidence on the
effect of the heart rate was not touched upon. The clearest evidence
by Dr Mashamba on the MOU issue is the following
qualification
of his admission that abruption is a medical emergency: “Ja,
what I wanted to say is that it depends on where
the patient is. You
make a diagnosis then depending on where the patient is, if the
patient is in a place where they cannot even
do what was supposed to
be done in the referral centre you cannot say they should have done
it.”
[15]
But Dr Mashamba did not know the MOU at this particular hospital and
did not know what it could and could not do. Clearly the MOU

recognised a problem and sent the plaintiff to a higher level of
care.
When
specifically asked in cross – examination to comment on the
recorded agreement in the joint minute that the caesarean
should have
been done as soon as possible after 12h00 he said: “Ja, because
we thought the (diagnosis of) abruptio was made.
If the abruption was
made but here it was missed in the beginning.
[16]
… So you have changed your view? No we say … Do you now
believe that there was no requirement of the caesarean section
as
soon as possible after 12:00? No, I am looking in the context of what
we have here and I had indicated that the first time at
12:00 the
patient (was) at MOU. MOU do not even have caesarean section
facilities let us start there right. So when we drew this
it was in
that context that this was in hospital. Now I have got even a better
view or knowledge to say this was MOU not the hospital.
[17]
…Is it still your view that a caesarean section should have
been done as soon as possible after 12:00? Yes if the diagnosis
was
made
[18]
….That
is fine, so its is still your view that a(s) caesarean section should
have been done as soon as possible after 12:00?
Yes but it does not
guarantee the outcome.
[19]
…Yes Doctor yes you have made very clear but what you said was
most likely with a better outcome? Ja
[20]
.
… But you agree with me that the child’s prospect would
have been so much better if the caesarean (was) done two
hours
earlier? Without guarantees yes.”
[21]
67.1.
Dr Mashamba did not know whether there was a doctor at the MOU.
[22]
67.2.
Once a diagnosis is made, it must be acted upon accordingly.
[23]
67.3.
The diagnosis of abruption was made at 13h45.
[24]
67.4.
Abruption is a medical emergency.
25
[25]
G.
COSTS DE BONIIS PROPRIIS?
68.
These
costs are not easily awarded. They are awarded when there is
“negligence in a serious degree”.
[26]
It has also been stated that such costs are awarded for conduct which
substantially and materially deviates from the standard expected
of
the legal practitioner, such that his clients, the actual parties to
the litigation, cannot be expected to bear the costs, or
because the
court feels compelled to mark its profound displeasure at the conduct
of an attorney in any particular context. Examples
are dishonesty,
obstruction of the interests of justice, irresponsible and grossly
negligent conduct, litigating in a reckless
manner, misleading the
court, and gross incompetence and a lack of care.
[27]
69.
The
authorities caution that cost orders de bonis propriis should only be
awarded in exceptional circumstances.
[28]
A legal advisor or legal representative is not to be punished with
such a cost order for every mistake or error of interpretation.
To
err
is,
after all, human.
70.
But
there is a limit. That limit is, to my mind, crossed when one
encounters the degree of indifference and incompetence evidenced
in
this case. Erring when trying to do one’s work well is one
thing. Not even caring about doing so is quite another. The
public
should not have to suffer this complete indifference and incompetence
at the hands of public servants. In 1902 Innes CJ
thought that it
would be detrimental to the public service to “mulct that
official in costs where his action or his attitude,
through mistaken,
was bona fide”.
[29]
But circumstances appear to have changed with not even censure from
our highest courts being sufficient to induce public officials
to
public minded service. Something is required to so induce them.
Perhaps
the answer lies in greater accountability.
71.
The MEC herself has stated that she is not personally involved in the
decisionmaking. I am not convinced that she is to
be held personally
liable for the costs
herein.
72.
The required exceptional circumstances are present in this case where
three professionals – two lawyers and one
medical practitioner:
-
72.1.
claim that they considered the merits of a case despite being unable
to do so because they were, on their own version under
oath, not in
possession of the necessary records;
72.2.
evidently paid no regard to the expert report of the plaintiff, nor
to the relevant documents that were provided with the
Liability
Bundle;
72.3.
failed to provide their chosen expert with access to the relevant
facts;
72.4.
failed to ask their expert to comment on the plaintiff’s expert
report;
72.5.
were content to rely on a one page “report” that
disclosed no basis for any defence;
72.6.
were content to rely on bald, unsubstantiated, assertions by the
expert;
72.7.
permitted the litigation to continue in circumstances where (1) no
defence is exhibited in the report of their expert (2)
no defence was
pleaded (3) no defence was advanced at trial and (4) they were
unaware of any defence to negligence;
72.8.
were reckless as to the facts of this matter.
73.
To this must be added an inert approach to pre – trial
litigation. Not one time period was promptly complied with.
Court
time was wasted because the expert report was only provided the
Friday before trial. The indifference as to time periods,
as well as
the contemptuous approach to discovery on the part of Messrs Matlou
and Macheke, creates an impression of intolerable
incompetence and
reckless disregard. When the bizarre approach to discovery is added
into the mix,
one
wonders whether one has stepped into an altered reality.
74.
The failure to attend adequately to matters concerning preparation
for trial on the part of Messrs Matlou and Macheke
is, in my mind,
enough of a departure from accepted norms of professional conduct to
hold them personally liable for the costs
of this matter. It matters
not that Mr Macheke is not assisting the defendant as an attorney. He
is a legal advisor in the legal
department of the defendant and
should concern himself adequately with matters allocated to him. This
includes ensuring
that
proper discovery occurs, among others.
75.
To
this must be added the failure of the three advisors (Messrs Matlou
and Macheke and Dr Cele) to obtain the necessary records
which would
have enabled them to consider the merits and to brief the expert with
the relevant documents to enable him properly
to consider the matter,
a failure representing  “negligence in a serious
degree”
[30]
and the necessary “exceptional circumstance”.
[31]
This failure led the defendant to defend a claim on negligence where
it had no defence.
76.
Neither
an attorney nor an official such as a legal advisor or medico –
legal advisor is a rubber stamp or conveyor belt with
his sole
function that of conveying instructions and documents to expert
witnesses and counsel. Indeed, as Kotze J said in Port
Elizabeth
Local Road Transportation Board and Others v Liesing
[32]
concerning the obligatory service of heads of argument
He
(the attorney) would, I consider, fail in his duty to his client if
he did not peruse both sets of heads of argument and direct
his mind
to the implications thereof and to the question whether his client's
interests are fully protected by the submissions
intended to be put
forward. The work of preparation is that of the attorney that of
presentation is the function of the advocate.
They operate side by
side, their functions differ in kind but they are complementary to
each other. The lay client has the right
to expect and to insist upon
their joint efforts in the conduct of all aspects of litigation
including the presentation of appeals.
The heads of argument are
required by Rule of Court to be served and are therefore documents of
fundamental importance in all appeals
to the Full Court. It will in
my view be entirely wrong for an attorney not to accord the heads of
argument the diligent attention
which he accords other documents of
fundamental importance.
77.
Attorneys
who file pleadings have a duty to satisfy themselves that evidence
would be available to substantiate the contents of
the pleading.
[33]
78.
The three advisors/representatives are professionals who are, on
their own version, charged with making important decisions.
78.1.
Those decisions should be made consciously and after due
consideration.
78.2.
The decisions can only be made on the strength of the relevant facts
which, in this case, required the antenatal and labour
records. As
the evidence showed, if something is not written down in medicine, it
did not happen. These records were essential
to a proper
consideration of the merits. The defendant argues that it could not
be required to interrogate its expert. I do not
agree. In the first
instance, the defendant should have enquired into the basis on which
Dr Mashamba
held
the view that it was not negligent. It that basis did not exist or
was, for example, irrational, it could not logically assist
the
defendant. No basis for the conclusion as to absence of negligence is
evident from Dr Mashamba’s report. He could not
logically have
supplied such a basis during the pre – trial consultations, as
he was not in possession of the relevant evidence.
78.3.
In these circumstances the decision to defend the claim on
negligence was reckless. This much was evident from the complete

agreement between the experts on all the relevant issues.  A
conscientious dealing with the facts of the case would have led
to
the joint minute being produced in time to avoid the cost of the
trial.
79.
My views on the degree to which Messrs Matlou and Macheke and Dr Cele
failed to comply with their duties are fortified by a
consideration
of the duty on the state as litigant.
H.
THE DUTY ON THE
STATE IN LITIGATION
80.
The
state should not conduct a case as if it were at war with its own
citizens, especially not against those who are “in terms
of
secular hierarchies and affluence and power the least in its
sphere.”
[34]
81.
It
should certainly not litigate in a manner calculated to deprive
persons such as Mrs Leshaba of her right of access to court because

of its refusal to adhere to the rules regarding pre – trial
preparation. From the fact that she attended at a state hospital,
I
deduce that the plaintiff is probably not a wealthy woman. This, to
my mind, heightens rather than lessens the obligation of
the
defendant towards her. She should be entitled to more than the
indifference that met her in each encounter with the state and

provincial structures in this case.
35
“All this speaks of a contempt for people and process that does
not befit an organ of government under our constitutional

dispensation.”
[35]
82.
In this case the defendant had consistently to be dragged to comply
with the simplest requests and even then it could not interest
itself
in this case. The defendant’s denial of being in possession of
relevant medical records and its failure
to
provide Dr Mashamba with those provided by the plaintiff speaks
volumes.
83.
As
Plasket J stated in Mlatsheni v The Road Accident Fund
[36]
(the footnotes to the
extracts from this
judgment are included)
[14]
From
these provisions, and a reading of the Act as a whole, it is not open
to doubt that the defendant is an organ of State.
[37]
That being so, it is bound by the Bill of Rights
[38]
and is under an express Constitutional duty to ‘respect,
protect, promote and fulfil the rights in the Bill of Rights’.
40
This means not only that it must refrain from interfering with the
fundamental rights of people but also that it is under a positive

duty to act in such a way that their fundamental rights are realised.
[39]
Furthermore, s 237 of the Constitution requires that all of its
constitutional obligations ‘must be performed diligently
and
without delay’.
[15]
By
frustrating the legitimate claim of the plaintiff in the way that I
have described, the employee of the fund who gave Mr Mvulana
his
instructions has acted in violation of the Constitution: he or she
has by unjustifiably frustrating the claim of the plaintiff,
failed
to ‘protect, promote and fulfil’ his fundamental rights
to human dignity,
[40]
to freedom and security of the person and to bodily integrity.
[41]
This employee has also fallen short of what is expected of public
administrators by s 195 of the Constitution in that it cannot
be said
that the irresponsible raising of a frivolous defence promotes and
maintains a high standard of professional ethics or
that it promotes
the ‘[e]fficient, economic and effective use of resources’.
It cannot similarly be said that he or
she has performed the
constitutional obligations owed to the plaintiff diligently.
[16]
Organs
of state are not free to litigate as they please.
[42]
The Constitution has subordinated them to what Cameron J, in Van
Niekerk v Pretoria City Council,
[43]
called ‘a new regimen of openness and fair dealing with the
public’. The very purpose of their existence is to further
the
public interest and their decisions must be aimed at doing just that.
The power they exercise has been entrusted to them and
they are
accountable for how they fulfil their trust.
[17]
It is
expected of organs of state that they behave honourably – that
they treat the members of the public with whom they deal
with
dignity, honestly, openly and fairly. This is particularly so in the
case of the defendant: it is mandated to compensate with
public funds
those who have suffered violations of their fundamental rights to
dignity, freedom and security of the person, and
bodily integrity as
a result of road accidents. The very mission of the defendant is to
rectify those violations, to the extent
that monetary compensation
and compensation in kind is able to. That places the defendant in a
position of great responsibility:
its control of the purse-strings
places it in a position of immense power in relation to the victims
of road accidents, many of
whom, it is well-known, are poor and
‘lacking in protective and assertive armour’.
[44]
In this case, the employee who gave Mr Mvulana his instructions has
abused his or her position of power.
84.
The state should not litigate in a way designed to undermine a
litigant’s right of access to court in terms of section
34 or,
for that matter, any other of her rights. Inertia and lethargy on the
part of the state could run up costs such that less
wealthy
litigants, unable to afford the multiple applications required to
compel a
response from the
state and bring the matter to trial, are compelled to withdraw.
85.
Not only were costs unnecessarily incurred by the plaintiff by the
various steps required to get the State Attorney to respond,
but the
taxpayer’s money is wasted each time the State Attorney and
public service lawyers fail to comply with time periods
and Rules of
Court.
I.
COURT PRONOUNCEMENTS
ON THE STATE ATTORNEY and PUBLIC
OFFICIALS
86.
Cost orders de bonis propriis against State Attorneys and public
officials are drastic measures. These functionaries should
not be
terrorised and paralysed into not doing their jobs by the fear that
every little error could be met by the extreme sanction
of a personal
cost order.
87.
But we are not faced with an error in this case, be it an error of
interpretation or judgment or even an oversight. We are faced
with
state employees who could not
be
bothered to do their work.
88.
Such incompetence undermines the Constitution and, with it, the
social contract underlying it. Our Constitutional Order was
not
arrived at easily. One might argue that we have been fighting for
this for a number of millennia. It cannot be permitted to
die with a
whimper, sunk away under a swamp of slothful indifference. Drastic
measures are called for to turn the tide. If personal
accountability
among public officials does not come naturally it must be
inculcated.  Somehow these officials must be taught
that their
actions (or lack thereof) have consequences; that what they do
matter. Somehow they must be
conditioned
to
care such that a Vuyisile Eunice Lushaba, in the midst of a physical
crisis, could expect to enter a provincial hospital and
receive the
best possible care; the kind of care that committed service produces.
And when mistakes are made (as they inevitably
will be) then there
must be the courage and intellectual honesty not to lie to her, not
to threaten her right of access to court
by foot dragging and further
incompetence; not to further insist that she was not entitled to
emergency medical treatment in circumstances
where the facts have no
patience with such mendacity.
89.
I observed the plaintiff, a far from hefty, young woman, carry her
fourteen year old son out of court on her back. She
did not have a
wheel chair in court. During the court proceedings she had to cradle
him in her arms because, paralysed as he is,
he could not sit by
himself. This is symbolic of the destruction wrought by the callous,
incompetent indifference on the part of
public officials inflicting
South Africa at the moment. The plaintiff and her son deserved much
better.
90.
An analysis of only a few of the judgments dealing with the conduct
of public officials over the course of the past 6
years or so reveal
that shaming public officials no longer work. Even the strongest
exhortation of our highest Courts falls on
deaf ears. I include some
extensive quotations from a number of authorities in the hope that
the State Attorney and defendant’s
legal department study them
with care.
91.
Tuchten
J in 2013 in Tasima (Pty) Ltd v Department of Transport and
Others
[45]
:
36.
I deprecate strongly the conduct of Ms Lithole as disclosed in her
own affidavits before us and the correspondence admittedly
sent and
received. Her conduct seriously prejudices the administration of
justice. Even more importantly, the dysfunctionality
to which she
refers demonstrates that the office of the State Attorney, Pretoria,
an important organ of state, is presently unable
to comply with its
constitutional and statutory obligations.
37.
To take but one, very important, function of the State Attorney:
under rule 4(9), service of court process on the State and
on
ministers and deputy ministers in the national government as
representative of the departments which they head may legitimately

take place by service on the State Attorney. If that office is
dysfunctional, a court cannot be confident that the process in
question has come to the attention of responsible officers within the
department concerned. Indeed, the experience of each of the
members
of this full bench has been that frequently and most disturbingly,
civil litigation against the State in this division
is allowed to go
by default. 38. Under s 1(1) of the State Attorney Act, 56 of 1957,
the several offices of the State Attorney
are under the control of
the Minister of Justice. This court too is an organ of state and
subject to the duties under s 41 of the
Constitution. With this in
mind, it is appropriate that, as foreshadowed in argument, both the
Minister of Justice and the parliamentary
portfolio committee for
justice be provided with copies of this judgment. In my view, too,
the Law Society of the Northern Provinces
should be sent a copy of
this judgment with the request that the Law Society investigate the
conduct of Ms Lithole and the office
of the State Attorney, Pretoria,
as disclosed in this judgment and the papers in the postponement
application. I emphasise that
while I consider the conduct of Ms
Lithole, as disclosed in her own affidavits, to be worthy of censure,
the primary purpose in
publicising this judgment in the way described
is to prompt those in a position to do so to ensure that the office
of the State
Attorney, Pretoria, fulfils its important constitutional
and statutory obligations.
92.
Van Oosten J in 2012 in The Minister of Safety and Security v G4S
International UK Ltd:
[13]
…No explanation has been tendered for the State Attorneys’
inaction. The matter was initially entrusted to Mr
Rambau, who at the
time was the senior assistant state attorney employed at the office
of the State Attorney in Johannesburg. …
For reasons that have
not been explained, Rambau plainly ignored and in fact abandoned his
duties as the legal representative of
the Minister. A long line of
notices, requests, warnings and even court orders were simply
disregarded and not attended to.
[14]
… Counsel for the Minister urged me to have regard to the
nature of the attorney client relationship which exists in
legal
matters concerning the State. Organs of state are obliged to avail
themselves of the services of the State Attorney (see
s 3 of the
State Attorney Act 56 of 1957). State departments, such as the SAPS,
do not have the free choice of instructing a particular
legal
representative or the right enjoyed by private litigants of
terminating the mandate of one legal representative and instructing

another. The SAPS is therefore bound to accept that all legal
matters, such as the present, will be dealt with the State Attorney.
Underpinning
this particular relationship, in my view, is the trust placed by not
only the SAPS, but other state organs, in the
State Attorney to
properly fulfil its mandate. But it goes further: the taxpayer also
has an interest in these matters, as public
funds are at risk in
matters where damages against the Minister are claimed. It cannot,
generally speaking, be expected from members
of the SAPS to regularly
monitor the State Attorney’s management of legal matters in
which they are or may be involved. In
most instances members of the
SAPS would not even be aware of the pending litigation as service of
the documents commencing legal
proceedings, can and is effected on a
representative of the Minister, including the office of the State
Attorney. These matters
are accordingly left entirely in the hands of
the State Attorney who is required to perform their duties with the
utmost diligence.
[15]
At this juncture I consider it necessary to digress and to address
the alarming neglect of duty by the State Attorney that
appears to
have become the order of the day in this division. I will confine the
comments I am about to make to cases involving
the State Attorney
that have served before me in the last few weeks. A number of
applications for default judgment against the
Minister appeared on
the unopposed motion court roll. In those matters the summons had
been properly served on the State Attorney,
on behalf of the
Minister. Those cases all
involved
claims for an alleged wrongful arrest and detentions by the SAPS. In
the absence of a notice of appearance to defend by
the State
Attorney, they were enrolled on the unopposed motion court roll, for
default judgment. At the last moment when the matters
were called in
court, an appearance from or on behalf of the State Attorney’s
office was made resulting in a postponement
and, of course,
unnecessary wasted costs. No explanation was tendered for the State
Attorney’s non-entry of an appearance
to defend, the plaintiffs
always content with a suitable costs order in their favour. This kind
of neglect, regrettably, permeated
into a large number of unopposed
matters appearing on another section of the motion court roll:
applications
against the Minister to compel discovery of documents or compliance
with some other notice delivered in terms of the
rules. Again, the
notices requesting discovery were duly served on the State Attorney,
but the lack of compliance, despite despatch
of a “courtesy
letter” again demanding compliance, caused them to be launched.
In one week 12 such matters served before
me. At the hearing there
was an appearance by or on behalf of the State Attorney. I was
informed that all those matters had become
settled in respect of
which draft orders were handed up for confirmation albeit without any
explanation for the reason for the
non-compliance. The draft orders
all provided for payment of the costs of the applications by the
Minister. In the present matter,
as I will deal with later, a further
costs order against the Minister, is about to follow. These all
provide examples of the unnecessary
waste of public funds due to
deteriorating standards of service and the absence of diligence.
[16]
The
instances of neglect and the general decline in the standards of
service rendered by the State Attorney’s office, is a
matter of
grave concern which needs to be addressed. It cannot be allowed to
endure any longer. An urgent in-depth investigation
by the
authorities concerned, in my view, is necessary. In order to set the
process in motion I have decided to cause a copy of
this judgment to
be forwarded to the Minister of Police, as well as the Minister of
Justice and Constitutional Development. It
is hoped that the flashing
red warning lights which are apparent from what I have set out above,
will encourage an investigation
and correction where necessary, in
order to rectify a state of affairs that is not conducive to the
delivery of justice by a well-established
legal service provider in
the public sector.
[46]
93.
In 2005 in Kate v MEC for Department of Welfare, Eastern Cape
Froneman J expressed the view that
Individual
public responsibility, in contrast to nominal political
responsibility, could be enhanced by forcing individual public

officials to explain and account for their own actions, as parties to
the litigation.
[47]
94.
Bertelsman
J in 2014 in Minister of Rural Development and Land Reform v Griffo
Trading CC; In Re: Griffo Trading CC v Minister of
Rural Development
and Land Reform
:
[48]
41.lt
is clear that the applicant department has been exceptionally poorly
served by the legal representatives it is obliged to
employ in terms
of section 3 of the State Attorney Act, 56 of 1957. Nothing has
changed since the court drew the completely unacceptable
level of
service delivery in the S A’s office to the attention of the
responsible authorities in the above quotation. The
litany of
failures evident in this case, to attend to the most elementary of
administrative duties in an attorney’s office,
such as
diarising files, observing deadlines set by the Rules and orders of
court, protecting the integrity of files and of original
documents
entrusted to officers of this court by their clients’ officials
reflects the same chaotic state of dysfunctionality
that attracted
the full court’s severe criticism. To this must be added the
failure to render a professional service to the
department and the
court, the unacceptable excuses proffered for failing to protect the
litigant’s interests and the unprofessional
manner in which
pleadings and affidavits were prepared. In addition it is clear that
the SA’s explanations and excuses for
the repeated failures to
comply with the duties of officers of this court fail to identify the
individuals responsible for some
of the worst neglects. There can be
little doubt that this failure is deliberate to shield the attorneys
concerned from being held
personally liable for the costs incurred as
a result of their misconduct. This court has had to express its
disquiet over the generally
very poor quality of work delivered by
the S A’s office in this Division on more than one occasion
since the Tasmina judgment
was delivered. (See, for instance, Central
Authority for the Republic of South Africa v R [2014] ZAGPPHC 19 (not
yet reported).
Punitive costs orders have been granted against the
SA’s clients on numerous occasions as a direct result of the
failure
of its officials to perform their professional functions. It
is a matter of very grave concern that nothing our courts have said

appears to have been heeded by the Minister or the Department of
Justice and Correctional Services. Courts cannot function effectively

without the professional support of its attorneys and advocates. The
State Attorney is involved most of the litigation affecting
the State
and is funded by the public purse. The present condition of this
office causes significant unnecessary expenditure of
public funds
that are wasted by costs orders granted against organs of state
because of the poor quality of professional service
provided by these
officers of the court. Eventually the very essence of the Rule of Law
is endangered if regular litigants fail
to observe the most basic
principles that protect the independence and quality of justice
dispensed by our courts. It is high time
that this malaise is
addressed.
53.The
court would have made an order holding the individual officers of
this court employed by the SA liable if they had been properly

identified. It is beyond question that Mbata was negligent to a very
high degree, but it appears also to be common cause that she
was on
leave and on medical leave during critical periods when the matter
was not given attention. It is unclear who was responsible
for losing
the applicant’s file and original documents. The failure to
identify these individuals appears to be deliberate
to avoid the
consequence of having to personally recompense the public purse for
the waste of taxpayers’ money because of
the responsible
attorneys’ unprofessional conduct. The court can but express
the hope that the authorities will take appropriate
action against
the delinquent individuals. A copy of this judgment will be sent to
the Hon Minister of Justice and Correctional
Services and to the
chairperson of the Parliamentary Portfolio Committee on Justice for
their information.
95.
Yacoob
J in 2008 in Njongi v MEC, Department of Welfare, Eastern Cape:
[49]
[84]
The decision not to admit the unlawfulness of the administrative
action in the circumstances cannot be said to be unobjectionable.

In particular, it must be said that judgments of courts in relation
to Provincial Government conduct are not meant simply to be
filed
away without being read.  They contain important information
that has a bearing on the conduct of the Provincial Government
in
issue.  It is probable that the legal advisors to the Provincial
Government did not read the various judgments which are
referred to
in this judgment with sufficient care.  If they did read them
however their conduct is worse.  Court judgments
were ignored by
these lawyers.  This is unsatisfactory.
[85]
It is not necessary in this case to decide whether the decision of
the Provincial Government to invoke prescription was
of such a nature
that it can or ought to be set aside.  That is because the
defence of prescription has in any event failed.
I am however
of the view that, as appears from what I have said earlier, both the
decision to oppose as well as the way in which
the case was conducted
represent unconscionable conduct on the part of the Provincial
Government.  I do not need to decide
whether the fault lay with
the legal advisor, an official in the Department, a political office
bearer or with all of them.
96.
Meer J
in the Land Claims Court in 2010 in Quinela Trading (Pty) Ltd v
Minister of Rural Development:
[50]
[36]
Nyathi v MEC for Department of Health, Gauteng and Another
[2008]
ZACC 8
;
2008 (5)
SA 94
(CC) reconfirmed the
constitutional principles regarding the duty of government in respect
of public administration. The same principles
are applicable to the
state’s duty to comply with its contractual and statutory
obligations. In Van der Merwe & Another
v Taylor N.O. &
Others
[2007] ZACC 16
;
2008 (1) SA 1
(CC) at 27 it was
acknowledged that the constitutional principles are basic values for
achieving a public service envisaged by
the Constitution, which
required the state to lead by example. As in that case the state has
failed
to
lead in the present case. In the earlier case of Mohamed and Another
v President of the RSA & Others
[2001] ZACC 18
;
2001
(3) SA 893
(CC) at
[68]
the Court endorsed the celebrated
words of Justice Brandeis in Olmstead et al v United States
11
:
“
In
a government of laws, existence of the government will be imperilled
if it fails to observe the law scrupulously….. Government
is
the potent, omnipresent teacher. For good or for ill, it teaches the
whole people by its example…..If the government
becomes a
lawbreaker, it breeds contempt for the law, it invites every man to
become a law unto himself; it invites anarchy,”
It should not
be necessary to force the State through a court order to comply with
its contractual obligations and an Applicant
who is forced to seek
such an order should not be out of pocket. I am satisfied that
Respondents’ conduct attracts the punitive
cost order sought.
97.
O’Regan
J in 2009 in South African Liquor Traders’ Association v
Chairperson, Gauteng Liquor Board:
[51]
[46]
I turn now to consider the question of costs. I consider first the
question of the costs of litigation in this Court, excluding
the
wasted costs of the hearing on 2 March 2006. The applicants have
successfully pursued constitutional relief in this Court and
there is
no reason why they should not be awarded their costs.
[47]
The question arises, however, as to the scale on which such a costs
order should be made. The applicants point to the dilatory
and
unhelpful manner in which the MEC and his officials conducted the
litigation both in the High Court and in this Court until
after the
Court made its order on 2 March 2006. Although there can be no doubt
that some of the fault for that conduct is to be
laid at the door of
the third respondent’s attorneys, as I shall set out below, in
my view the MEC bears responsibility for
that conduct as well. His
legal advisers were in possession of many of the documents and failed
to take appropriate steps to ensure
that the litigation proceeded
smoothly and properly. The MEC must be responsible for the conduct of
his legal advisers.
[48]
A court will ordinarily show its displeasure at the manner in which a
litigant has conducted himself during litigation by an
award of costs
on the attorney and client scale. As Tindall JA remarked:
“
The
true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be that, by reason of special

considerations arising either from the circumstances which give rise
to the action or from the conduct of the losing party, the
court in a
particular case considers it just, by means of such an order, to
ensure more effectually than it can do by means of
a judgment for
party and party costs that the successful party will not be out of
pocket in respect of the expense caused to him
by the litigation
.”
[49]
The MEC, as an organ of state, bears a special obligation to ensure
that the work of courts is not impeded
.
Moreover in
this case the applicants have been seeking relief in respect of a
provision in a statute which is clearly vague on
its own terms and
therefore inconsistent with the Constitution. Their attempts have
been bedevilled by the manner in which the
litigation has been
approached by the MEC and, in particular, his legal representatives
including his own departmental legal advisers
as well as the State
Attorney. In all these circumstances, this is an appropriate matter
for costs to be awarded against the MEC
on the attorney and client
scale.
The
conduct of the State Attorney
[50]
The final issue to be considered relates to the wasted costs of the
hearing on 2 March 2006. It will be recalled that on that
date there
was no timeous appearance by the State Attorney on behalf of the MEC
despite the State Attorney’s having been
asked to be present by
an official from the Registrar’s office of this Court.
Moreover, the State Attorney failed to inform
its client of a
specific request from this Court to the MEC (in directions issued by
this Court on 24 January 2006) to lodge affidavits
in this matter.
The affidavit lodged on behalf of the individual attorney handling
the matter indicates that she did not read the
communication from the
Court but merely filed it, considering it to be an “update”.
[51]
It is clear from both the affidavit and the argument tendered on
behalf of the State Attorney in this Court that the attorney

concerned was recently qualified and inexperienced in constitutional
litigation. It does not appear from her affidavit that she
sought a
supervisor’s advice. Nor was there any affidavit lodged by her
superiors indicating what system exists in the State
Attorney’s
office for the supervision of junior members of staff in important
litigation such as this.
[52]
The result is both unfortunate and serious. It is unfortunate because
the effect in this case was to give the impression that
the MEC, a
senior member of the executive in provincial government, was not
interested in assisting this Court in resolving important

constitutional litigation. That impression has now been rectified. It
is serious because as a matter of common practice it is the
State
Attorney who is briefed by the government when it is involved in
litigation. Given the government’s responsibility
to assist the
work of courts, a lapse of this sort in the State Attorney’s
office gives cause for grave concern.
[53]
In my view, such a lapse called for an explanation to be tendered by
a senior attorney in the office of the State Attorney.
It was not
appropriate that the only explanation forthcoming from the State
Attorney’s office should have been from a young,
inexperienced
attorney alone. In so observing, it needs to be said however that the
explanation that the young attorney gave for
not responding to
correspondence from this Court reflected a lamentable want of
professional responsibility on her part. It also
reflects on her
superiors who have evidently left her inadequately supervised and
trained.
[54]
An order of costs de bonis propriis is made against attorneys where a
court is satisfied that there has been negligence in
a serious degree
which warrants an order of costs being made as a mark of the court’s
displeasure
.
An attorney is an officer of the court
and owes a court an appropriate level of professionalism and
courtesy. Filing correspondence
from the Constitutional Court without
first reading it constitutes negligence of a severe degree. Nothing
more need be added to
the sorry tale already related to establish
that this is an appropriate case for an order of costs de bonis
propriis on the scale
as between attorney and client. The order is
made against the office of the State Attorney, not personally against
the attorney
concerned. This Court’s displeasure is primarily
directed against the office of the State Attorney in Pretoria whose
systems
of training and supervision appear to be woefully inadequate.
98.
Madala
J in Nyathi v Member of the Executive Council for the Department of
Health Gauteng
[52]
Conduct
of the State Attorney
[64]
It is here necessary to consider the manner in which the applicant
sought to enforce the judgment debt against the state.
The
applicant approached the State Attorney and requested payment of the
money owed. The State Attorney promised to pay and then
failed to do
so. Reasons were not given for the failure to pay nor did the State
Attorney offer any guidance as to when payment
would be made.
[65]
The State Attorney then indicated that its client, the first
respondent, had decided to bring an application for rescission
but
could not indicate the basis of such application nor the reason for
the instruction.  This protracted correspondence all
occurred
whilst the applicant’s health deteriorated steadily.  The
applicant requested to communicate directly with
the first respondent
and thereafter contacted the senior legal administrator in the first
respondent’s department.
Communications failed between
the parties and explanations as to the lack of payment were still not
forthcoming.  The interim
payment sought by the applicant was
only received when this Court made a request for such payment to be
made.
[66]
The fact that payment was only made once the applicant approached
this Court for
relief
reflects the fact that the current procedure of approaching the State
Attorney is not effective.  There are multiple
state
institutions involved in the authorisation and administration of
debts against the state and this has contributed significantly
to the
delays in this matter and related matters.  It is a convoluted
and difficult method which is, as is evident in this
matter, largely
unsuccessful.
[67]
It is evident from the factual matrix before us that there is a
breakdown in communication between the office of the State
Attorney
and the first respondent.  The first respondent is the client of
the State Attorney yet there is much ‘bureaucratic
bungling’
which impedes the delivery of justice.  There is no need for
such delays when there is already in existence
a court order for
payment.
[68]
An affidavit was presented on behalf of the State Attorney’s
office indicating the reasons for its failure to file an
appearance
to defend in the High Court, as well as its failure to inform the
relevant state officials of the outstanding judgment
debts.  The
reasons given are largely unsatisfactory and provide no real solution
to problems within the department.
[69]
These reasons have, however, been taken into consideration, yet it
must be noted that this Court commented on this very problem
over a
year ago in the Liquor Traders case
.
Precious little has since
been done to rectify the situation and I cannot accept further
excuses for the ineptitude, especially
after the State Attorney has
been made fully aware of the alarming state of affairs.  In
Liquor Traders, this Court made the
following remarks with regard to
the inefficiency of the State Attorney:
“
It
is serious because as a matter of common practice it is the State
Attorney who is briefed by the government when it is involved
in
litigation.  Given the government’s responsibility to
assist the work of courts, a lapse of this sort in the State

Attorney’s office gives cause for grave concern.
In
that case, this Court ordered costs against the office of the State
Attorney de bonis propriis on the scale as between attorney
and
client, and not personally against the attorney concerned. The costs
order was indicative of the Court’s displeasure
and was
“primarily directed against the office of the State Attorney in
Pretoria whose systems of training and supervision
appear to be
woefully inadequate.
”
Relying on the moral
obligation of the State Attorney and the Department of Justice to
improve the state of affairs has been
an exercise in futility.
I, accordingly, find that the relevant state institutions should take
steps to rectify the problems
highlighted above and report back to
this Court as to the progress made.
[74]
There is a desperate need for legislation to be enacted that will
specifically target the areas of concern outlined in this
judgment.
The apathy of state officials in their failure to pay judgment debts
cannot be addressed unless progressive, targeted
steps are taken
towards solving these problems.
[76]
The English Courts have looked at the possibility of holding
officials responsible for wrongs that they have committed in their

official capacity
.
They proceed on the premise that, in
committing the wrongs, such officials are stepping outside of the
realm of protection afforded
to public officials under the Crown
Proceedings Act. The possibility of a similar route in South Africa
is, however tempting, impractical.
The committal of public
officials would only result in the ‘naming and shaming’
of such officials and would produce
no real remedy for the aggrieved
litigant who is primarily concerned with the payment of the judgment
debt.  The potential
disruption of already overburdened state
departments is also a result which should be avoided.
[77] The problems
faced in this matter are different. First, the procedures and
mechanisms required to enforce claims against the
funds are lacking
and this needs to be addressed with due consideration of the
competing interests involved in this matter.
[78] Secondly, state
administration is inefficient and ineffective.  The conduct of
state officials undermines the legitimacy
of both the judiciary and
the state.  Generally, relevant state departments are in the
best position to assess the magnitude
of the problems faced by their
personnel and are similarly in the best position to address the
systemic failure of state officials
to perform their duties.
These state institutions need to look at these failings holistically
and consider the best manner
in which to deal with the problems at
hand.  This Court is not in a position at this stage to assess
the problems faced.
J.
CONCLUSION
99.
In the memorable Nyathi decision, Madala J said the following about
the connection between our democracy and the manner in which
state
functionaries
performed
their functions:
[80]
Certain values in the Constitution have been designated as
foundational to our democracy
.
This in turn means that as
pillar-stones of this democracy, they must be observed scrupulously.
If these values are not observed
and their precepts not carried out
conscientiously, we have a recipe for a constitutional crisis of
great magnitude. In a state
predicated on a desire to maintain the
rule of law, it is imperative that one and all should be driven by a
moral obligation to
ensure the continued survival of our democracy.
That, in my view, means at the very least that there should be strict
compliance
with court orders.
[81]
The state’s function is to execute its duties in terms of the
relevant legislation. The failure of the state to edify
its
functionaries about the very legislation which governs their duties
is unacceptable. It may be true that the problem lies with
the
officials who do not know what their responsibilities are and,
regrettably, with legal representatives who do not know who
the
responsible functionaries are. However, this ignorance is no
justification for their failings. It may explain the cause of
the
problem, but it constitutes neither a good excuse nor a justification
thereof and cannot serve to protect the state from being
held
responsible.
100.
That judgment, coming as it did from the highest court in our land,
should have been sufficient to galvanise the State Attorney
into
mending its ways. Clearly, if regard is had to the extracts of the
judgments referred to above, it has not done so.
101.
Messrs Matlou and Macheke and Dr Cele have addressed in their
affidavits issues around their conduct and decision making in
this
case and I am satisfied that they have properly been heard. The rule
nisi foreshadowed the consideration of a special cost
order against
the responsible officials.
102.
In the circumstances I make the following order:
102.1.
Ezekiel Matlou; Jabulani Macheke and Kgoposi Cele are ordered to pay
de bonis propriis 50% of the costs (identified as such
paragraph 134
of my first order of 16 October 2014) jointly and severally with the
defendant on the attorney and client scale.
102.2.
In the event of the plaintiff recovering all of her costs from the
defendant, the defendant is ordered to recover 50% of
the costs paid
by her to the plaintiff de bonis propriis from Messrs Matlou; Macheke
and Cele jointly and severally.
102.3.
The conduct of Mr Matlou is referred to the Law Society of the
Northern Provinces for investigation and such further action
as it
may deem fit.
102.4.
The registrar is directed to send a copy of this judgment, as well as
the judgment in this matter of 16 October 2014 to the
Law Society of
the Northern Provinces with the request that the Law Society
investigate the conduct of Mr. Ezekiel Matlou as appears
from this
judgment with a view to taking such action as the Law Society may
consider appropriate.
R
M Robinson AJ
26
November 2014
Date
of hearing : 28 October 2014
Date
of Judgment: 26 November 2014
Plaintiff’s
counsel: Adv Pillay SC
Instructed
by: Wright Rose Innes, Johannesburg
Defendant’s
counsel: Adv R Latib
Instructed
by: State Attorney, Johannesburg
[1]
Kriel
v Bowels
2012
(2) SA 45 (ECP)
[2]
Kriel
v Bowels
supra at [15]
[3]
[25] of defendant’s heads
[4]
[25] of defendant’s heads
[5]
[27] of defendant’s heads
[6]
[27] of defendant’s heads
[7]
Section 27(3) of the Constitution should not be forgotten.
[8]
Mashamba p6 lines 10 - 18
[9]
Coopers
(SA) (Pty) Ltd v Deutsche Gesellschaft fur Schadlingsbekampfung MbH
1976
(3) SA 352 (A)
[10]
heads of argument [33]
[11]
Heads of argument [38]
[12]
Heads of argument [39]
[13]
Mashamba p7 lines 19 - 22
[14]
Heads of Argument [41]
[15]
Mashamba pp35 – 36 lines 21 - 1
[16]
Mashamba p75 lines 21 - 24
[17]
Mashamba p75 line 25 – p76 line9
[18]
Mashamba p77 lines 2 - 4
[19]
Mashamba p77 lines 13 - 15
[20]
Mashamba p77 lines 16 - 22
[21]
Mashamba p79 lines 20 - 23
[22]
Mashamba p38 lines 19 - 21
[23]
Mashamba p34 lines 13 - 15
[24]
Mashamba p39 lines 18 - 19
[25]
Mashamba p45 lines 24 - 25
[26]
South
Africa Liquor Traders Association v Chairperson, Gauteng Liquor
Board
2009 (1) SA 565
(CC) [54]
[27]
Multi-Links
Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd; Telkom
SA Soc Limited and another v
Blue
Label Telecoms Limited and others
[2013] 4 All SA 346
(GNP) at
[35]
[28]
For an example where costs
de
bonis propriis
were
awarded against an attorney in the office of the State Attorney see
Tasima
(Pty) Ltd v Department of Transport and Others
2013 (4) SA 134
(GNP). See also, by way of analogy,
Hai
Lin and Weng v Minister of Home Affairs
(the Cathay Pacific judgment of Spilg J) delivered on 11 November
2014 in case no 2014/22434 in the GLD, Johannesburg.
[29]
Coetzeestroom
Estate and GM Co  v Registrar of Deeds
1902
TS 216
and see
Absa
Bank v Robb
2013 (3) SA 619
GSH at [14]
[30]
South
Africa Liquor Traders Association v Chairperson Gauteng Liquor Board
2009 (1) SA 565
CC at [54]
[31]
Thunder
Cats Investments 49 (Pty) Ltd v Feton
2009 (4) SA 138
(C)at [60]
[32]
1968 (4) SA 401 (E)
[33]
Knight
v Findlay
1934 NPD 185
[34]
Permanent
Secretary, Department of Welfare, Eastern Cape v Ngxuza
2011 (4) SA 1184
SCA at [15]
35
Permanent
Secretary, Department of Welfare, Eastern Cape v Ngxuza
2001 (4) SA 1184
(SCA) at [12]:
It
is the needs of such persons, who are most lacking in protective and
assertive armour, that the Constitutional Court has repeatedly

emphasized must animate our understanding of the Constitution’s
provisions.
[35]
Permanent
Secretary, Department of Welfare, Eastern Cape v Ngxuza
supra at [15]
[36]
Case 418/2005 ECD
[37]
Section 239 of the Constitution defines an organ of state to include
an institution that exercises a public power or performs
a public
function in terms of any legislation.
[38]
Constitution, s 8(1).
40
Constitution, s 7(2).
[39]
Jafta
v Schoeman and others; Van Rooyen v Stoltz and others
2003 (10) BCLR 1149
(C), para 39;
S
v Z and 23 Similar Cases (No. 2)
2004 (2) SACR 410
(E), para 3.
[40]
Constitution, s 10.
[41]
Constitution, s 12.
[42]
MEC
for Roads and Transport and others v Umso Construction (Pty) Ltd
CkHC undated judgment (case no. 2034/05) unreported;
MEC
for Roads and Public Works, Eastern Cape and another v Intertrade
(Pty) Ltd
2006 (5) SA 1
(SCA), paras 20-21.
[43]
1997 (3) SA 839
(T), 850B-C.
[44]
Permanent
Secretary, Department of Welfare, Eastern Cape and another v Ngxuza
and others
2001 (4) SA 1184
(SCA), para 12.
[45]
2013 (4) SA 134 (GNP)
[46]
case 07/12735 South Gauteng High Court at [13]
[47]
2005 (1) SA 141
SE at [11]
[48]
(12440/11) [2014] ZAGPPHC 666 (2 September 2014)
[49]
2008 (4) SA 237 (CC)
[50]
2010 (4) SA 308 (LCC)
[51]
2009 (1) SA 565 (CC)
[52]
[2008] ZACC 8
;
2008 (9) BCLR 865
(CC)