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[2018] ZAGPJHC 405
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The Member of the Executive Council: Health and Social Development, Gauteng Province v Mthimkulu obo M M (2014/22984) [2018] ZAGPJHC 405 (21 May 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST
TO OTHER JUDGES
(3)
REVISED.
CASE NO: 2014/22984
21/5/2018
In the
matter between
THE
MEMBER OF THE EXECUTIVE COUNCIL:
HEALTH
AND SOCIAL DEVELOPMENT,
GAUTENG
PROVINCE
APPLICANT
and
MTHIMKULU,
DAPHNE BUSISIWE
o
b o M
M
RESPONDENT
J U D G M E N T
Olivier
AJ:
[1] The applicant
(defendant) was unsuccessful in defending a medical negligence claim
instituted against her by the respondent (plaintiff) on behalf of
respondent’s minor child. It was held by the court that
the
child’s cerebral palsy resulted from the negligence of the
medical and/or nursing staff at Chris Hani Baragwanath Hospital.
The
court ordered the defendant to pay the plaintiff’s agreed or
proven damages as a result of the negligence.
[2] The applicant now
applies for leave to appeal to the Supreme Court of Appeal,
alternatively
to the Full Bench of this division, against the order
of this court granted on 19 April 2017. The application for leave to
appeal
is accompanied by an application for condonation for the late
filing of the application for leave to appeal. The application for
condonation is opposed by the respondent.
[3] The facts of the case are
set out comprehensively in the main judgment and need not be
repeated
here, except where relevant in discussing the prospects of success.
[4] The
appeal was filed more than three months late. I was not “readily
available”
[1]
at the time to hear the application for leave to appeal as I was no
longer resident in Gauteng. The matter was then assigned to
Van
Oosten J for hearing, but the parties later requested that I hear the
application, considering my familiarity with the case.
It was agreed
that the parties would file heads of argument. A process was agreed
upon and heads of argument were subsequently
filed by the parties,
which are now before me.
CONDONATION APPLICATION
[5]
Condonation is not a mere formality and is not to be had “merely
for the asking”.
[2]
What is required is an explanation not only of the delay in the
timeous prosecution of the appeal but also the delay in seeking
condonation for non-compliance.
[3]
The applicant must show that she did not willfully disregard the
timeframes provided for in the Rules of Court.
[4]
She is obliged to satisfy the court that there is sufficient or good
cause for excusing her from compliance.
[5]
[6]
Condonation may be refused where there has been a flagrant breach of
the rules especially
where no explanation is proffered.
[6]
The applicant should convince the court to exercise its discretion in
her favour.
[7] An
application for condonation should be brought without delay and as
soon as possible
once an applicant realizes that he has not complied
with a rule of court.
[7]
And it is not to say where non-compliance was due
entirely to the neglect of the applicant’s attorney,
condonation will be
granted.
[8]
[8] In the recent
Mulaudzi
case the Supreme Court of Appeal set out the factors to take into
account when considering an application for condonation:
A full, detailed and accurate account of the
causes of the delay and their effects must be furnished so as to
enable the Court to
understand clearly the reasons and to assess the
responsibility.
[9]
Factors which usually weigh with this court in
considering an application for condonation include the degree of
non-compliance,
the explanation therefor, the importance of the case,
a respondent’s interest in the finality of the judgment of the
court
below, the convenience of this court and the avoidance of
unnecessary delay in the administration of justice.
[10]
[9] In the
earlier case of
Melane v Santam
Insurance Co Ltd
[11]
the then Appellate Division explained the broad approach to be
adopted in such an enquiry:
In deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially
upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant
are the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case. Ordinarily
these
facts are interrelated; they are not individually decisive, for
that would be a piecemeal approach incompatible with a true
discretion,
save of course that if there are no prospects of success
there would be no point in granting condonation. Any attempt to
formulate
a rule of thumb would only serve to harden the arteries of
what should be a flexible discretion. What is needed is an objective
conspectus of all the facts. Thus a slight delay and a good
explanation may help to compensate for prospects of success which are
not strong. Or the importance of the issue and strong prospects of
success may tend to compensate for a long delay. And the respondent’s
interest in finality must not be overlooked.
[10] From these two cases the following can
be distilled:
o
The court has a discretion which
should be exercised judicially.
o
There ought to be fairness to both
sides.
o
Relevant facts to consider include:
degree of lateness and of non-compliance; the explanation offered by
the applicant; the prospects
of success; the interest of the
respondent in the finality of the judgment; any unnecessary delay in
the administration of justice;
and the importance of the case.
o
The factors should not be considered
individually but as part of an objective conspectus of all the facts.
o
If there are no prospects of success
there would be no point in granting condonation.
o
A slight delay and a good
explanation may help to compensate for prospects of success which are
not strong.
o
The importance of the issue and
strong prospects of success may tend to compensate for a long delay.
o
The respondent’s interest in
finality must be considered.
[11] These factors should not be
considered in a piecemeal fashion but cumulatively so the court
can
determine whether sufficient cause has been shown to grant
condonation. However, for purposes of convenience, they are briefly
set out individually below.
Degree of lateness
[12] Judgment was delivered on 19 April
2017. The application for leave to appeal must have been
delivered by
12 May 2017. The notice of the application for leave to appeal was
served on 16 August 2017. This is a delay of over
3 months.
The explanation for the delay
[13] The applicant
is required to provide a “full, detailed and accurate account
of the causes
of the delay and their effects … It must be
obvious that, if the con-compliance is time-related then the date,
duration
and extent of any obstacle on which reliance is placed must
be spelled out.”
[12]
There must be an explanation for the entire period of the delay.
[13]
[14] Mr Paul Cartwright, of the State
Attorney’s office in Johannesburg, deposed to an affidavit
in
support of the application for condonation.
[15] The judgment was served on the
State Attorney on 21 April 2017. The file was handled by Ms Catherine
Sethlako, but she had left the office by the time that judgment was
given. The file had not been allocated to another attorney.
[16] The procedure at the office is
that documents are placed in attorneys’ pigeon holes for
their
personal collection. It was not collected as no one was in position
to collect it.
[17] Mr Cartwright only became aware of
the judgment when informed thereof by junior counsel on 28
May.
Senior Counsel was informed on the same day.
[18] When informed by junior counsel,
Mr Cartwright says that he attempted to locate the file. He
says that
after a period of searching, he managed to track down the file and a
copy of the judgment. He reallocated the matter
to himself.
[19] Senior counsel drafted the notice
of leave to appeal and a condonation application on 21 June
2017,
which he sent to junior counsel.
[20] Both Mr Cartwright and junior
counsel were subsequently not at work for extended periods. Mr
Cartwright’s absence included family responsibility leave from
19 June to 29 June, and again from 4 July to 14 July, due
to an
injury suffered by his daughter, of whom he is the single parent. He
was back at work on 17 July. He says that this incident
gave rise to
various delays which should not be attributed to the Defendant.
[21] Junior counsel was away and
returned only on 3 July 2017. She suffered a family bereavement
on 24
July resulting in her absence from chambers from 28 July. Mr
Cartwright was able to consult with her only on 3 August. Junior
Counsel then settled the drafts and forwarded them to Senior Counsel,
who finally settled them on 7 August.
[22] Mr Cartwright says that he was in
the meantime awaiting feedback from the applicant, after the
State
Attorney had sent a copy of the judgment and the draft notice of
application for leave to appeal to her department.
[23] Mr Cartwright submits that the
delays were not the fault of the applicant and that she should
not be
made to suffer prejudice in this matter as a result of an incident
out of anyone’s control.
[24] In my view the affidavit could
have dealt with the delay more comprehensively. It is unclear
when
Junior Counsel became aware of the judgment. There is no explanation
why the papers were only served on the respondent on
16 August, more
than a week after Senior Counsel settled the application on 7
August.There is no explanation why the application
for leave and the
condonation application were drafted by Senior Counsel only on 21
June 2017, more than 3 weeks after the attorney
and Senior Counsel
were made aware of the judgment. It is not stated why Junior Counsel
did not to settle the drafts between the
date of her return (3 July)
and the date of her family bereavement (24 July). It is not stated
when Ms Sethlako resigned or why
another attorney was not allocated
to the matter. It is not stated when instructions were requested by,
or given to, the State
Attorney to apply for leave to appeal. Mr
Cartwright does not explain how his own absence contributed to the
delays experienced
in finalizing the application.
Prejudice to the plaintiff and her interest in the finality of the
judgment
[25] One must not lose sight of the
interest of the respondent in the finality of the judgment. In
her
answering affidavit, the respondent describes the prejudice she and
her 12 year old child would suffer as a result of the matter
not
being finalized.
[26] At the start of the trial merits
and quantum were separated in terms of Rule 33(4). The end
is not yet
in sight for the respondent as the amount of damages is still to be
determined in a new trial. This is likely to be
a long process. If
the matter were to proceed unnecessarily to appeal, this could cause
undue prejudice to her and her minor child.
Avoidance of unnecessary delay in the administration of justice
[27] The administration of justice
requires that matters be dealt with efficiently and without delay.
Prospects of success and importance of the case
[28] A court must
assess the prospects of success unless the other facts, considered
cumulatively,
are such that it makes the application for condonation
“obviously unworthy of consideration”.
[14]
This would be in instances of flagrant breaches of the rules,
especially where there is no acceptable explanation for the breach.
[29] As already
recorded above, if there are no prospects of success there would be
no point in granting
condonation; a slight delay and a good
explanation may help to compensate for prospects of success which are
not strong; and the
importance of the issue and strong prospects of
success may tend to compensate for a long delay.
[30] The time delay of three months is
not so egregious or the explanation so unsatisfactory or incomplete
that condonation should be refused out of hand. A fuller picture
would have been desirable, but the court is still able from the
facts
presented by Mr Cartwright to determine in broad terms the reasons
for the delay. I do not consider it appropriate, in the
circumstances
of the case, to refuse condonation without first considering the
prospects of success, the importance of the case,
and whether there
is some other compelling reason for leave to be granted.
[31] The standard of
reasonable prospects of success has been developed by our courts over
time.
[15]
It is now specifically set in section 17 of the Act as a substantive
requirement.
[16]
Previously, applications for leave to appeal were governed by Section
20(4)(b) of the Supreme Court Act and Rule 49 of the Uniform
Rules of
Court, both of which dealt exclusively with the practical aspects of
leave to appeal applications.
[17]
[32] Section 17
provides that leave to appeal may be granted only where the judge is
of the opinion
that the appeal
would
have a reasonable prospect of success, or if there is some other
compelling reason why the appeal should be heard, including
conflicting
judgments on the matter under consideration.
[18]
[33] This is a more
stringent approach than before,
[19]
and thus the bar to qualify for leave to appeal has been raised.
[20]
The word “only” means that leave to appeal may be granted
in the stated circumstances only.
[34] The new test requires a greater
measure of certainty of a different outcome on appeal, according
to
Bertelsmann J in
The Mont Chevaux Trust:
It is clear that the threshold for granting leave
to appeal against a judgment of a High Court has been raised in the
new Act. The
formed test whether appeal should be granted was a
reasonable prospect that another court might come to a different
conclusion.
The use of the word “would” in the new
statute indicates a measure of certainty that another court will
differ from
the court whose judgment is sought to be appealed
against.
[21]
[35] The wording of the legislation is
deliberate. However, the provision should not be interpreted
as
setting the bar so high as to effectively deny an applicant any
chance of being granted leave to appeal. This cannot be what
the
legislature intended.
[36] The applicant
has raised several grounds on which she challenges the judgment. She
contends that
I misdirected myself on both facts and law. Grounds
include that the finding that the nursing staff had failed to monitor
the foetus
properly in light of the CTG, is not found in the
evidence. The applicant also challenges my finding that the
probabilities favoured
an intrapartum injury, contending that this
finding is not founded in the evidence.
[37] I consider it
unnecessary to deal with each of the different grounds individually.
I shall consider
only those which I think could potentially have some
prospects of success, or which require specific comment. Many of the
grounds
were addressed adequately in the judgment, and there is no
need for repetition.
Assessment and evaluation of expert evidence
[38] The applicant criticises my
findings in respect of the respondent’s experts.
[39] The applicant
contends that Professor Smith ventured into areas that were not part
of his expertise.
The respondent calls this a “very superficial
and unconvincing” argument. I am satisfied that I correctly
found that
Prof Smith is an expert and that he did not exceed the
bounds of his expertise.
[22]
[40] The applicant
also challenges my conclusions in respect of Drs Volmer and Pearce,
and argues
that Dr Volmer is not an expert. I am satisfied with the
correctness of my findings in this regard, as set out in the
judgment.
[23]
[41] It is argued by the applicant that
the respondent’s expert witnesses sought to draw inferences
adverse to the applicant in an unscientific manner. In particular,
that they drew on assumptions and worked on the basis that if
something was not written down in the records, it did not happen. The
applicant calls the experts’ methodology “suspect”.
On reflection, I view the applicant’s argument in respect of
methodology and the reliance, if any, placed on missing or incomplete
records by the experts worthy of further consideration.
[42] The applicant thus contends that
the matter should head to the Supreme Court of Appeal because
the
assessment of the (expert) evidence, the drawing of inferences and
the ambit of the expert evidence merit the attention of
the SCA.
Accordingly, she argues, a judgment on appeal is required which deals
with all those aspects and will bind all lower courts.
Recordkeeping – the court’s assessment of the
incomplete or missing records
[43] The hospital records of the minor
child and the respondent play a pivotal role in this case.
Some, but
not all, records were missing or incomplete.
[44] The applicant calls my approach to
recordkeeping “strange”. It is contended that
I equated
the absence of records with causal negligence. In other words, that I
conflated negligence and the failure to keep proper
records. The
respondent argues that sufficient records were available to make the
findings in respect of negligence and causation.
This was also my
conclusion in the main judgment.
[45] At the end of
the judgment I commented generally on the statutory duty of health
institutions
to keep records.
[24]
Considering the facts of this particular case and others in this
Division, I do not think it was inappropriate to remind health
institutions of this duty.
[46] The applicant contends that if
records or documents are missing, they are simply missing. The
applicant maintains that if something was not written down, it does
not mean that it was not done. Applicant’s senior counsel’s
refrain throughout the trial was that, due to the incomplete records,
“we simply don’t know” what happened.
[47] The applicant’s witnesses,
significantly Sister Mkhonto, who was on duty the day of the
birth,
conceded that if something which should have been recorded was not
recorded, it means it was not done. The applicant argues
that Sister
Mkhonto’s concession cannot assist the respondent; her
contention is that as a matter of law, if something is
not recorded,
no adverse inference can be drawn.
[48] The applicant thus argues that
leave to the SCA should be granted “to express definitive
views
on professional negligence, causation and, in that context, the role
of incomplete recordkeeping. It cannot be law that,
as has been
prevalent in many provincial decisions, inadequate recordkeeping
plays a role (albeit subjectively) in the conclusions
of the
fact-finder.”
[49] The applicant points out that even
though the loss of records amounts to a contravention of
rules,
regulations and legislation, it is irrelevant to the determination of
causation and negligence. The respondent says that
there is no novel
legal point on the aspect of recordkeeping that requires the
attention of the Supreme Court of Appeal and there
is accordingly no
reason to grant leave.
[50] So are these
points raised by the applicant sufficient to establish prospects of
success? The
Supreme Court of Appeal outlined the test of reasonable
prospects of success on appeal as follows in
Smith
v The State:
[25]
What the test … postulates is a dispassionate decision, based
on the facts and the law that a court of appeal
could
reasonably arrive at a conclusion different to that of the trial
court. In order to succeed, therefore, the appellant must convince
this court on proper grounds that he has prospects of success on
appeal and that those prospects are not remote but have realistic
chance of succeeding. More is required to be established than that
there is a mere possibility of success, that the case is arguable
on
appeal or that the case cannot be categorised as hopeless. There
must, in other words, be a sound, rational basis for the conclusion
that there are prospects of success an appeal.
[51] In the recent
Hunter v Financial Services Board
case
[26]
in this division, Jacobs AJ explained it thus:
An appeal will have prospects of success if it is arguable in the
narrow sense of the word. It requires that the argument advanced
by
an applicant in support of an application for leave to appeal must
have substance. The notion that a point of law is arguable
on appeal,
entails some degree of merit in the argument. The argument, however,
need not be convincing at the stage when leave
to appeal is sought
but it must have a measure of plausibility.
[52] On reflection, I am of the view
that the applicant has established reasonable prospects of success.
There is sufficient merit in the arguments raised by the applicant
about recordkeeping to justify consideration by a higher court,
particularly in respect of any weight this court may have attached to
the missing or incomplete records in the determination of
causation
and negligence. In respect of the expert evidence also, there is
sufficient merit in the applicant’s arguments
pertaining to the
methodology employed by the experts and their reliance, if any, on
the incomplete or missing records, to warrant
a higher court’s
consideration. The applicant’s arguments are based on proper
grounds. No absolute certainty of success
is required at this stage
for leave to be granted.
[53] The number of medical negligence
cases involving incomplete or absent records is on the rise.
The
public has an interest in the correctness and fairness of the outcome
of these cases.
[54] On an objective assessment of all
the facts, I am of the view that the applicant has shown sufficient
cause for condonation to be granted. However, granting condonation in
this case does not imply that the suboptimal functioning
of the State
Attorney’s office should be a general justification for delay
in all cases. Each case should be assessed on
its own facts.
[55] I am satisfied also that it would
be appropriate under all the circumstances to exercise my
discretion
in favour of granting leave to appeal. There are adequate prospects
of success to meet the threshold. This is also a
matter of sufficient
importance to justify consideration by a higher court.
[56] A single judge
as a court of first instance is enjoined to direct that an appeal be
heard by a full
bench, unless he considers that the decision involves
a question of law of importance, whether because of its general
application
or otherwise, or in respect of which a decision of the
SCA is required to resolve differences of opinion, or that the
administration
of justice, either generally or in the particular
case, requires consideration by the SCA of the decision, in which
case they direct
that the matter be heard by the SCA.
[27]
[57] Considering the circumstances of
the case, its importance and the nature of the issues involved,
I
agree with the applicant that leave should be granted to the Supreme
Court of Appeal.
ORDER
[58] The following order is made:
58.1 The late filing of the application for leave to
appeal is condoned.
58.2 The applicant is granted leave to appeal the whole
of the judgment/order to the Supreme Court of Appeal.
58.3 The costs of this application shall be costs in the
appeal.
M
OLIVIER
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR APPLICANT
ADV PAUW SC
ADV MKOLO
COUNSEL
FOR RESPONDENT
ADV COETZER
DATE
OF JUDGMENT
21 MAY 2018
[1]
S 17(2)(a) of the Superior Courts Act.
[2]
Uitenhage Transitional Local Council v South
African Revenue Service
2004
(1) SA 292
(SCA)
at para [6].
[3]
Mulaudzi
v
Old
Mutual Life Assurance Company (South Africa) Limited
2017 (6) SA 90
(SCA) at para [26].
[4]
Shabalala v Goudine Chrome (Pty) Ltd and
Another,
unreported, case no: M
342/2016, Northwest Provincial Division, Hendricks J, 2 November
2017, at para [3].
[5]
Erasmus v Absa Bank Ltd and Others
,
unreported, case no: A/982/13, Gauteng Provincial Division,
Pretoria, Full bench per Potteril J, at para [11].
[6]
Erasmus supra
at
para [11].
[7]
Mulaudzi supra
at
para [26].
[8]
See
Darries
v Sheriff, Magistrate’s Court, Wynberg and Another
1998 (3) SA 34
(SCA) at 40I—41D.
[9]
Uitenhage Transitional Local Council supra
at
para [6].
[10]
At para [26].
[11]
1962 (4) SA 531
(AD) at 532 B—E.
[12]
Uitenhage Transitional Local Council supra
at para [4].
[13]
See
Darries supra
at
41A.
[14]
Mulaudzi supra
at
para [34].
[15]
R v Baloyi
1949
(1) SA 523
(A) at 524,
R v Nzumalo
1939 AD 580
,
R v Ngubane
1945 AD 185
at 187;
Afrikaanse Pers Bpk
v Olivier
1949 (2) SA 890
(O);
Paulsen
& Another v Slip Knot Investments 777 (Pty) Ltd
2015 (3) SA 479
(CC) at paras [21]–[24].
[16]
For
an analysis of s 17, see
Hunter
v Financial Services Board and Others
(case
no: 3275/2016) [2017] ZAGPPHC 258 (16 March 2017) at paras [3] to
[7].
[17]
Hunter supra
at
para [4].
[18]
S 17(1)(a)(i) and (ii).
[19]
Notshokovu v S
(unreported,
SCA case no 157/15, dated 7 September 2016).
[20]
The Mont Chevaux Trust (IT 2012/28) v Tina
Goosen
(unreported, LCC case no
LCC14R/2014, dated 3 November 2014), cited with approval in
The
Acting National Director of Public Prosecutions v Democratic
Alliance
(unreported, GP case no
19577/09, dated 24 June 2016) at para [25].
[21]
The Mont Chevaux Trust supra
at
para [6].
[22]
See paras [110]—[115] of the main judgment.
[23]
Ibid.
[24]
Paras [195]—[198] of the main judgment.
[25]
2012 (1) SACR 567
(SCA)(15 March 2011) at para
[7].
[26]
Hunter supra
at
para [5].
[27]
S 17(6) of the Superior Courts Act.