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2015
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[2015] ZAGPJHC 119
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Mkondo v MEC for Health of the Gauteng Provincial Government (2014/14425) [2015] ZAGPJHC 119 (8 June 2015)
REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA,
GAUTENG LOCAL DIVISION
CASE NO: 2014/14425
DATE: 08 JUNE 2015
In the matter between:
EVELYN NOMSOMBUKO
MKONDO
...................................................................................
Plaintiff
And
MEC FOR HEALTH OF THE GAUTENG
PROVINCIAL GOVERNMENT
..................
Defendant
J U D G M E N T
MASHILE J:
[1] This matter was referred to this
court with specific instructions – to decide whether or not it
should be postponed sine
dies to afford the Defendant adequate time
to prepare himself. Needless to add that in the event that the court
declines a postponement,
it will refer the matter beck to roll call
for allocation. Conversely, if the court grants the postponement,
further questions
that require adjudication are, who of the two
should bear the costs of the delay and at which scale.
[2] The court heard arguments of the
parties on Thursday and thereafter stood the matter down to Friday, 5
June 2015, for judgment.
When the parties reassembled in court the
next day , it transpired that the Plaintiff had additional evidence,
a letter from the
State Attorney to the Defendant setting out why the
State Attorney’s mandate was terminated, which she thought
could possibly
have an influence on the outcome of the case. The
court considered the contents of the letter and gave an order and
assured the
parties that it would deal with the contents of the
letter in the reasons that it would give subsequently. These are the
reasons.
[3] The Plaintiff instituted these
proceedings against the Defendant in her representative capacity as
the mother and natural guardian
of her minor daughter, Margaret Lovey
Mkondo, whose date of birth is 23 November 2003. Without delving into
the intricacies of
the Plaintiff’s claim against the Defendant,
it should suffice to state that it is for an amount of R21 500 000.00
made up
of various headings.
[4] I shall deal with the issues in the
order in which they arise in paragraph 1 above. First, however, a
brief background of the
facts is necessary to put the matter in its
proper perspective. Accordingly, the facts from which the application
for postponement
arose are that The Defendant has recently been
experiencing a steady growth of medical negligence litigation against
him.
[5] Generally and traditionally, the
State Attorney acts as a legal representative of virtually all organs
of States. These days,
however, the trend is that the State Attorney
can brief independent attorneys when it is overcrowded with matters
or does not have
the requisite skill to handle a particular case.
[6] Like most matters that emanate from
the State, the State Attorney was the legal representative for the
Defendant in the instant
case until his mandate was de facto
terminated on 28 May 2015 albeit that legally it remained on record
until 3 June 2015. Technically
therefore the Defendant was
represented by two legal teams between 28 May and 3 June 2015.
[7] Although the Defendant appointed
the current attorneys on 28 May 2015, it was not until 1 June 2015
that the present attorneys
were notified of their instructions. They
therefore could not come on record prior to the State Attorney’s
withdrawal as
attorneys of record. The State Attorney withdrew as
attorneys of record on 3 June 2015.
[8] The current attorneys could not
formally brief their Counsel as their instructions have until the
hearing of this application
remained insufficient in that neither the
State Attorney, their erstwhile attorneys, nor the Defendant himself
had supplied them
with a full file pertaining to this case. In this
regard there is evidence to corroborate this in the form of letters
dated 1,
2 and 3 June 2015 addressed to Mr Sethunya of the State
Attorney copying Ms Ratshibvumo, the deponent to the affidavit in
support
of this postponement application.
[9] The essence of the contents of all
three letters is similar in that they all request the State Attorney
to withdraw and furnish
them with a complete file so that they could
place themselves on record. Mr Sethunya only replied late on 3 June
2015 and acknowledged
that the State Attorney’s mandate had
indeed been terminated. Counsel for the Defendant obtained the
inadequate brief late
on 3 June 2015.
[10] Upon perusal of their papers, she
noted that several crucial documents, which she would need for proper
preparation of the
case, were not part of her brief. She bluntly
advised them that she would not be ready to argue the case on their
behalf on 4
June 2015 as to do so could be tinkering on the edge of
professional negligence. She ultimately accepted the brief on the
understanding
that she would move for a postponement so that she
could assess the status of the case and call for the missing papers.
[11] When the matter served before this
court on 4 June 2015, Counsel for the Defendant had just settled the
Defendant’s affidavit
in support of the application for
postponement. Such affidavit was prepared in order to comply with
the minute of the parties
dated 29 August 2014 wherein it was agreed
that the Defendant would prepare a substantive application when it
needed to move a
postponement at any stage. The reasons for the
postponement are largely as set out hereinabove.
[12] It is inexorable to enquire why
the Defendant does not deal with the reasons for the termination of
the mandate of the State
Attorney in greater detail in his affidavit
in support of the application for the postponement. Counsel for the
Defendant intimated
that the Defendant has recently incurred huge
sums of money as a result of the State Attorney’s laxity when
dealing with
his matters and that this has come at an enormous cost
to the tax payer especially as the claims are normally massive.
[13] In the whole though, the
relationship between the State Attorney and the Defendant is that of
an attorney and client. Whatever
differences the parties may have
should be regarded as privileged. If so privileged, it is of
necessity outside any party’s
reach unless immunity has been
specifically waived. For that reason, the Defendant was justifiably
disinclined to disclose the
full detail of the relationship between
the Defendant and the State Attorney.
[14] Fundamental to an application for
a postponement is the consideration of prejudice that the other party
to the proceedings,
the Plaintiff in this case, may suffer as a
result of the postponement if it is granted. In the second place, the
application must
be bona fide and supported by valid reasons.
Generally, courts tend to lean in favour of granting indulgence
provided the reasons
furnished in support of such application are not
flimsy. See the unreported case of Bells Bank Number One (Pty) Ltd v
The National
Union of Mine Workers (Case No: C144/2008) delivered in
April 2012 by Van Voore AJ.
[15] Also pertinent is the case of
Erasmus NO v Commission for Conciliation Mediation & Arbitration
& others
[2012] JOL 28408
(LC) where Swanepoel AJ stated at
paragraphs 58 and 59:
“[58] It is trite that the
granting of an application for postponement is not a right but an
indulgence granted by the CCMA
or the court in the exercise of a
judicial discretion.
[59] An application for postponement
must be bona fide and not used simply as a technical manoeuvre for
the purpose of obtaining
an unfair advantage over the opposing
party.”
[16] In Magistrate Pangarker v Botha
and Another
2015 (1) SA 503
(SCA), the court refused a further
postponement after the matter had been delayed on three occasions the
basis being that the other
party to the proceedings was being
prejudiced.
[17] In the same breath as the Erasmus
case supra is the case of Take and Save Trading CC & Others v
Standard Bank of SA Ltd
2004 (4) SA 1
(SCA), a case to which this
court was referred, where it was stated:
“A supine approach towards
litigation by judicial officers is now justifiable either in terms of
the fair trial requirement
or in the context of resources. One of
the oldest tricks in the book is the practice of some legal
practitioners, whenever the
shoe pinches, to withdraw from the case
(and more often than not to reappear at a later stage), or of clients
to terminate the
mandate (more often than not at the suggestion of
the practitioner), to force a court to grant a postponement because
the party
is then unrepresented. Judicial officers have a duty to
the court system, their colleagues, the public and the parties to
ensure
that this abuse is curbed by, in suitable cases, refusing a
postponement. Mere withdrawal by a practitioner or the mere
termination
of a mandate does not, contrary to popular belief,
entitle a party to a postponement as of right.”
[18] The Plaintiff contended firstly,
that the affidavit filed in support of the application for
postponement is not worthy of consideration
because it does not make
a case for postponement at all and secondly, albeit not in so many
words, that the withdrawal of the Defendant’s
attorneys was
nothing but a gambit to force the court to postpone the matter as he
would be unrepresented. In this regard the
court was referred to the
case of Take and Save supra where the court warns about this kind of
practice and states that it should
not be countenanced by courts.
[19] Counsel for the Plaintiff pointed
out to the dates on which the Defendant instructed the present
attorneys and purportedly
terminated the mandate of the State
Attorney to act on his behalf. A momentary look at the dates
suggests that the Defendant instructed
the present attorneys on 28
may 2015 and yet he only withdrew his mandate of the State Attorney
on 3 June 2015. The Plaintiff
argued that this does not make sense
and is fraught with tricks to force a postponement as envisaged in
Take and Save Trading CC
supra the practice of which should be
discouraged.
[20] I turn to consider the Plaintiff’s
contention that the affidavit in support of the application does not
make a case for
postponement. I was advised by both parties that the
Deputy Judge President extended an invitation to the Plaintiff to
file an
answering affidavit, which the Plaintiff declined as she
believed that there was no case to answer. This of course means that
the affidavit in support of the application stands as evidence which
is not opposed.
[21] It is appropriate that I should at
this stage mention that the Plaintiff made an application that in
view of the dearth of
information in the affidavit of the Defendant,
it was necessary that the court should allow the deponent to the
founding affidavit,
Ms Ratshibvumo, to give viva voce evidence. The
court refused this application and promised to furnish its reasons
when dealing
with this judgment.
[22] The first reason is that generally
motion proceedings are decided on papers. Viva voce evidence is only
allowed in exceptionally
deserving cases. The Plaintiff did not
persuade this court that it was in the interest of justice to allow
Ms Ratshibvumo to testify.
In the second place, the Plaintiff was
afforded an opportunity to answer to the affidavit and she rejected
it.
[23] The application to obtain further
viva voce evidence from Ms Rtshibvumo was nothing but an attempt to
salvage a lost opportunity
that the Plaintiff missed when she was
invited to file an answering affidavit. Needless to state that had
she done so, she would
have alluded to the paucity of detail in the
affidavit. The Defendant would have replied and there would not have
been a need
for this application. For that reason, the Plaintiff
made her bed and must lie on it.
[24] The next question to consider is
whether or not the reasons given by the Defendant are sufficiently
cogent to be accepted for
purposes of granting the postponement. I
do not believe that the reasons given to justify the postponement are
flimsy. It is
common knowledge that cases concerning medical
negligence against the Departments of Health in various provinces
have been mounting.
Concomitant with the increase in the litigation
is the cost of running such cases on the public purse.
[25] It is also a known fact that
recently the relationship between the State Attorney and the
Department of Health in various provinces
has taken a strain. The
tension in the relationship between the parties is caused, correctly
or incorrectly, the belief or perception
that the State Attorney is
not necessarily acting in the best interest of the Defendant. The
Defendant did allude to this problem
albeit with restraint
understandably in view of the privilege that exists between the two
parties.
[26] The further evidence in the form
of an undated letter from the State Attorney received by Plaintiff’s
attorneys on 5
June 2005, which the Plaintiff read to this court on 5
June 2015, is confirmation that the relationship between the State
Attorney
and the Defendant is not the most ideal. I do not deem it
necessary to traverse the reasons for the deteriorating relations
between
the two parties in view of such relationship being governed
by privilege.
[27] The Defendant wrote a letter on 28
May 2015 instructing the current attorneys to take over the matter
from the State Attorney.
However, that letter according to Ms
Ratshibvumo only reached the attorneys on 1 June 2015. The Defendant
had at that stage still
not informed the State Attorney that it had
withdrawn its mandate.
[28] What is significant is that the
letter once delivered to the attorneys triggered three letters all of
which were calling upon
the State Attorney to supply the file. Those
letters were dated 1, 2 and 3 June 2015. No reply to those letters
was forthcoming
until late on 3 June 2015 when the matter was to be
before this court the next day.
[29] This court is reasonably satisfied
that the reasons furnished for the postponement are manifestly
distinguishable from the
case of Bells Bank Number One (Pty) Ltd
supra in that they are persuasive. It is also clearly different from
the Take and Save
Trading CC case supra because while the Defendant
in this case also terminated his attorneys’ mandate, he
immediately appointed
other attorneys to act on his behalf. The
Defendant did not come to court on his own to tell this court that he
could not proceed
as he has had problems with his erstwhile
attorneys.
[30] It is worth pointing out, as
Counsel for the Defendant did, that while this postponement retards
the process of finalizing
the case, unlike in the Pangarker case
supra, it cannot be said that he is abusing the process as it is the
first time that he
is requesting for an indulgence.
[31] Finally, I turn to determine
whether, the postponement, if granted, will prejudice the Plaintiff.
The Defendant was the first
to admit that there is no question that
the postponement will to some degree prejudice the Plaintiff. For
that reason, he was
ready and willing to tender costs occasioned by
the postponement. The prejudice that the Plaintiff will suffer, in
my opinion,
is engulfed by the other reasons in support for a
postponement besides, the Defendant has offered to pay the costs of
the Plaintiff.
[32] This represents an opportune
moment to discuss the scale at which costs must be awarded if the
application succeeds. The Defendant
has passionately argued that
such costs should be those as at the scale between party and party
while the Plaintiff asserted that
the court should award punitive
costs.
[33] I disagree with the approach of
the Defendant. The Defendant has for a while been aware that some of
his cases were not getting
the attention that they deserved from the
State Attorney. He should therefore have taken curative and/or
anticipatory measures
to ensure that matters handled by the State
Attorney did not escape his eye. It is his laxity that led to the
late detection of
the problem hence this application for
postponement. It is for that reason that he must be saddled with the
payment of costs of
the Plaintiff at the attorney client scale.
[34] In the circumstances, the
application for postponement of the case succeeds and I make the
following order:
1. The case is postponed sine dies;
2. The Defendant will pay the costs of
the Plaintiff including those of two Counsel as at the scale between
attorney and client.
B. A. MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Plaintiff: Adv G.
Strydom SC with Adv A. Viljoen
Instructed by: Mokoduo Inc
Counsel for the Defendant: Adv
Manaka
Instructed by: Ngcebetsha Madlanga
Inc
Argument took place on: 4 June 2015
Order granted on: 5 June 2015
Judgment/Reasons given: 8 June 2015