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[2016] ZAGPJHC 243
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Zondo v MEC for Health of the Gauteng Provincial Government (25644/2014) [2016] ZAGPJHC 243 (2 September 2016)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO:
25644/2014
DATE: 2 SEPTEMBER 2016
In the matter between:
ZONDO,
NWABISA
.............................................................................................................
PLAINTIFF
And
THE MEC FOR HEALTH OF THE GAUTENG
PROVINCIAL
GOVERNMENT
.....................................................................................
DEFENDANT
JUDGMENT
Van der Linde, J:
[1]
In
this trial action the parties have agreed to separate, under rule
33(4), the defendant’s application for an amendment to
his plea
from the other issues that arise between the parties on the
pleadings. The postponement of the other issues is a forgone
conclusion because the matter will not be allocated a trial judge in
respect of those, for reasons related to non-compliance with
Practice
Directives of this court. This latter fact has a costs implication to
which I will return below. I will make an appropriate
separation
order at the end of the judgment. I am required to decide the
amendment, the costs of the amendment, and the costs of
the
postponement of the rest of the issues. I deal with these issues in
turn.
[2]
The
amendment is to introduce the plea of prescription. The plaintiff
claims from the defendant R21,5m as damages for the defendant’s
breach of contract alternatively of a delictual duty of care after
her minor son, O, born 9 October 2007, suffered permanent brain
damage during and immediately after birth as a result of the
negligence of the defendant’s staff at the Natalspruit and
Chris Hani Baragwanath Hospitals. The claim is made up of future
medical expenses (R12m), future loss of earning (R5m), general
damages (R3m), and the costs associated with the protection of funds
(R1,5m).
[3]
The plaintiff sues in her representative
capacity as mother and natural guardian of her minor son. The minor’s
claims will
not become extinguished by prescription until a year
after he becomes a major at the age of 18.
[1]
[4]
The
defendant’s special plea contends that properly construed, the
plaintiff’s claims all, except the R3m claim for
general
damages, are claims of the parents and not the minor child; and that
those claims, thus in the aggregate amounting to R18,5m,
have been
extinguished by prescription. In other words, there is in the case of
the parents no delay of prescription as applies
in the case of the
minor.
[5]
Since the defendant’s application is
for an amendment and since one is not now concerned with the merits
of the proposed special
plea, the question is merely whether the
special plea, if allowed, will raise a legally sustainable defence.
Questions of the timing
of the application do not come into it, since
prescription may be raised “…
at
any stage of the proceedings.”
[2]
[6]
The
objection against the proposed amendment is the mirror image of the
proposed special plea. It is that the claim is in truth
the
plaintiff’s claim in her representative capacity; it is not the
plaintiff’s claim in her personal capacity.
[7]
The
issue here is therefore not whether the plaintiff has a contractual
or delictual claim for future loss of earnings and future
medical
expenses, assuming that her son was negligently injured by the
hospital staff. The question is whether the minor has such
a claim,
whether concomitantly with the mother’s claim or not.
[8]
It seems to me that Guardian National
Insurance Co Ltd v Van Gool, NO,
[3]
referred to by Mr Pauw, SC who appeared with Ms Mansingh for the
defendant, is in point against the defendant. In that case the
father
of a minor, who was injured when a motor vehicle ran her over, sued
the relevant insurance company under the Compulsory
Motor Vehicle
Insurance Act 56 of 1972 in his representative capacity for future
medical expenses, future loss of earnings and
general damages. The
question was whether the claim for future medical expenses was a
claim of the father or of his minor daughter.
[9]
In
the judgment of the then Appellate Division, Joubert JA for the court
examined the origins of the claim for bodily injuries.
The learned
judge explained that when the actio legis Aquiliae was originally
enacted in 286 BCE, it did not include a claim for
bodily injuries.
In time the Praetor extended the remedy to include compensation for
patrimonial loss in respect of bodily injuries.
This included claims
for future loss of earnings.
[10]In
Roman Law only the paterfamilias could institute the claim, and not
the filiusfamilias; this is because the paterfamilias
was the only
one that paid the bills. If the filiusfamilias acquired anything at
all, this was acquired, virtually in a socialistic
sense, by the
paterfamilias.
[4]
[11]Although
the Dutch lawyers allowed the claim, when it was received there many
year later, to include a claim for non-patrimonial
losses, such as
for pain and suffering, in this country first the Cape Provincial
Division in Hoffa NO v SA Mutual Fire & General
Insurance Co
Ltd
[5]
and then the Appellate Division in Government of the Republic of
South Africa v Ngubane,
[6]
held that the claim for non-patrimonial loss was a claim sui generis,
and did not fit the actio legis Aquiliae.
[12]
Joubert JA pointed out however that the Dutch
never accepted the Roman concept of a patriarchal family reigned over
by a paterfamilias.
Roman-Dutch law did however consider that parents
had parental authority over the minor children, and by operation of
the natural
law there was a reciprocal duty of support between
parents and children, the extent of which was determined by their
means.
[7]
[13]In
dealing with the potential claims of a minor, Joubert JA held
(emphasis supplied):
[8]
“
Natural
persons acquire at birth legal capacity (regsbevoegdheid) to have or
possess legal rights and duties
.
See Boberg The Law of Persons and the Family 1977 at 37-41, 529. A
minor may at birth or at any time during minority inherit property
and become the owner thereof.
He
may have an estate of his own with an income, as appears from
numerous references in the authorities
,
for example Van der Keessel ad Gr 1.6.1, 3; Lee and Honoré (op
cit para 148(i)-(iv), (vi)).
In
the present matter Catherine has no assets or income of her own.
Since she is not self-supporting to maintain herself, there
is
accordingly available to her a right to claim support from her
parents to pay, according to their means, her prospective medical
and
hospital expenses.
But as the
victim of a delict perpetrated against her she also has an additional
legal right to claim compensation from the wrongdoer
for general
damages relating to non-patrimonial loss (such as pain and suffering,
loss of amenities, disfigurement and loss of
expectation of life) as
well as prospective patrimonial loss such as future medical and
hospital expenses and future loss of earnings
.
The delictual liability of the wrongdoer (Van Gool in his personal
capacity) arising from the collision falls ex lege on the appellant
as an authorised insurer of the motor vehicle in terms of the
provisions of the Act.
A
minor has no locus standi in judicio to appear on his own in civil
proceedings. Voet 5.1.10, 11; Herbstein and Van Winsen The
Civil
Practice of the Superior Courts in South Africa (1966) at 142. He
requires the assistance of a guardian or a curator ad litem
in Court.
Wolman and Others v Wolman
1963 (2) SA 452
(A) at 459A-B. In the case
of an infans below the age of seven years the practice is that the
guardian or curator ad litem should
sue or be sued in his
representative capacity. Lee and Honoré (op cit para 149).
That procedure was in fact
adopted in the present matter since Van Gool instituted the action in
his capacity as father and natural
guardian of Catherine. He did not
personally claim any relief
. The
special plea is directed at the fact that he sued in his
representative and not his personal capacity. It is Catherine and
not
Van Gool who is party to the action as plaintiff. Mokhesi NO v Demas
1951 (2) SA 502
(T) at 503E; Greyling v Administrator, Natal
1966 (2)
SA 684
(D) at 689A-B.”
[14]So Van Gool made it plain
that a minor has a claim for prospective patrimonial loss such as
future medical and hospital expenses
and future loss of earnings. Van
Gool has not been overruled by the Constitutional Court, nor departed
from by the Supreme Court
of Appeal. It is thus binding on this
court. In my view the present case is indistinguishable, and the
contentious claims preferred
here are, as in Van Gool, at least also
claims of the minor.
[15]Mr Pauw submitted that Van
Gool was distinguishable, since it was not concerned with
prescription, as this case is. It does
not appear that prescription
was expressly raised in Van Gool, but I do not see how that affects
the principle. The principle at
issue here concerns whether a minor
suffers damages of the nature with which we are concerned and, if so,
whether his guardian
has the right to claim them on behalf of the
minor. Van Gool held that the minor and her guardian have those
rights. Prescription,
especially strong prescription, is concerned
with extinguishing rights as a result of inaction; it is not
concerned with identifying
the repository of those rights.
[16]It follows that the objection
to the amendment is well-taken, and the application to amend must be
disallowed. Costs of the
application must follow the result.
[17]That leaves the costs of the
postponement of the rest of the issues. One does wonder what those
costs might be, because the
trial did start, but did not run its
course. That is however a matter for the taxing master. As to
liability for those costs, Mr
Pauw submitted that at roll call on 29
August 2016 the real issue that concerned the Deputy Judge President,
was the fact that
the further pretrial conference which the letter of
26 July 2016 directed, was left for as late as 19 August 2016. He
said that
the plaintiff’s response to the letter of the Deputy
Judge President was to propose a pretrial conference for 18 August,
not earlier; which then in the event could not be pulled off until
the next day.
[18]
Mr
Strydom, SC who appeared for the plaintiff with Ms Viljoen, submitted
that the parties would not have been in the position of
poor pretrial
performance had it not been for the defendant’s reticence in
responding to the questions posed at the pretrial
conferences held
earlier this year.
[19]The difficulty with delays is
that ultimately squeeze trial readiness into an impossible frenzy, is
that one is always able
to point back in time to some earlier
delaying performance upstream and then, looking forward again, to
aggregate those to arrive
at an explanation for why things are not
ready when they should be.
[20]In practice however things
have a way of developing such that there comes a time when parties
are required to have a sense of
urgency, absent which a matter will
not be ready for trial allocation. Put differently, there comes a
time when some things are
on the critical path of trial allocation
readiness, but others are not.
[21]I am afraid that the
plaintiff’s email of 1 August 2016 concerned a matter which was
on the critical path of trial allocation
readiness, but the email did
not display the required sense of urgency. The trial had been set
down for Tuesday 23 August 2016,
and three weeks away meant that the
pretrial conference which the Deputy Judge President directed, could
not wait until the Friday
before the trial.
[22]In my view the plaintiff was
thus primarily responsible for the failure of this matter being
allocated a trial judge, and the
plaintiff should be ordered to pay
the wasted costs occasioned by the postponement.
[23]In the result I make the
following order:
(a)
The
issue of the defendant’s application dated 26 August 2016 to
amend his plea to introduce the plea of prescription, is
separated
from the other issues that arise between the parties on the
pleadings, and it is directed that the trial of those other
issues so
separated is postponed sine die.
(b)
The
plaintiff is directed to pay the costs wasted as a result of the
postponement referred to in the previous paragraph, such costs
to
include the costs occasioned by the employment of two counsel.
(c)
The
defendant’s application dated 26 August 2016 for an amendment
of its plea is refused with costs, such costs to include
the costs
occasioned by the employment of two counsel.
WHG van der
Linde
Judge, High
Court
Johannesburg
For the
plaintiff: Adv. G.J. Strydom, SC
Adv.
A. Viljoen
Instructed by: Mokoduo
Attorneys
Office 1001, 10
th
Floor
Bedford Centre Office
Towers
Smith Road, Bedford
Gardens
Bedfordview
Johannesburg
Tel: 011615 2872
Ref: RE/DP/Z16
For the defendant: Adv.
P. Pauw, SC
Adv. R. Mansingh
Instructed by: The
State Attorney
10
th
Floor,
North State Building
95 Market Street
Johannesburg
Tel: 011 330 7612
Ref:
2089/14/P4/SMI472
Date argued: 29 August 2016
Date of judgment: 02 September
2016
[1]
S.13(1)(a)
of the
Prescription Act 68 of 1969
.
[2]
S.17(2)
of the
Prescription Act.
[3
]
1992 (4) SA 61 (AD).
[4]
Van Gool, NO at 64 in fin.
[5]
1965(2) SA 944 (C).
[6]
1972 (2) SA 601 (A).
[7]
Van Gool, NO, at 65 in fin to 66A.
[8]
Op cit, at 66 C to F.