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[2014] ZASCA 60
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Member of the Executive Council For Health: Eastern Cape Province v Mbodla (449/2013) [2014] ZASCA 60 (6 May 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 449/2013
Not
reportable
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR HEALTH:
EASTERN
CAPE
PROVINCE
..........................................................................................
Appellant
and
FEZA
MBODLA
..............................................................................................................
Respondent
Neutral
citation:
MEC for Health: Eastern
Cape v Mbodla
(449/2013)[2014] ZASCA 60
(6 May 2014)
Coram:
MTHIYANE DP, MAYA and WALLIS JJA, VAN ZYL and
MATHOPO AJJA.
Heard
:
2 May 2014
Delivered
:
6 May 2014
Summary:
Application proceedings –
respondent raising prescription by way of notice in terms of Rule
6(5)
(d)
(iii)
– court not satisfied that issue capable of determination
without oral evidence – proper order one in terms of
Rule
6(5)
(g).
ORDER
On
appeal from:
Eastern Cape High Court,
Mthatha (Griffiths J sitting as court of first instance):
1
The appeal is upheld and the order of the court below is set aside
and replaced by the following order:
‘
(a)
The application is referred for the hearing of oral evidence on the
question whether the Plaintiff’s claim had prescribed
before
the service of summons.
(b) The plaintiff
shall appear to be examined and cross-examined at the hearing of such
oral evidence.
(c)
The provisions of Rules 35, 36, 37 and 38
shall apply to the hearing of such oral evidence.
(d) The costs of the
application are reserved for decision by the court hearing such oral
evidence.’
2
The costs of the appeal, including the costs of the application for
leave to appeal, are to be costs in the application.
JUDGMENT
Wallis
JA (Mthiyane DP, Maya JA and Van Zyl and Mathopo AJJA concurring)
[1]
Mr Mbodla was injured in a motor accident
on 25 June 2006. According to him, he was treated at the Nelson
Mandela Hospital. He complains
that his treatment was negligent in
various respects and on 1 November 2011 he instituted an action
for damages against the
MEC for Health, Eastern Cape Province (the
MEC). The MEC caused a plea to be delivered in which he raised two
special pleas. The
first was that Mr Mbodla had not complied with the
requirement that he give notice of his claim to the MEC within six
months of
the debt becoming due, as required by s 3(1)
(a)
,
read with s 3(2)
(a)
,
of the Institution of Legal Proceedings against certain Organs of
State Act 40 of 2002 (the Legal Proceedings Act). The second
was that
the claim had prescribed in terms of s 10(1), read with ss 11
(d)
and 12, of the
Prescription Act 68 of 1969
.
[2]
The
delivery of the plea prompted Mr Mbodla to bring an application, in
terms of s 3(4)
(a)
of
the Legal Proceedings Act, seeking condonation for his failure to
deliver a notice within the prescribed period. The MEC’s
response was to deliver a notice in terms of Rule 6(5)
(d)
(iii)
of the Uniform Rules of Court averring that his claim had prescribed
and that accordingly condonation could not be granted.
[1]
The notice averred that the grounds set out by Mr Mbodla for saying
that his claim had not prescribed were bad in law and that
he had
known of the identity of the MEC as his debtor and the full facts
giving rise to his claim as early as 25 June 2006, when
he received
treatment at the Bedford Hospital.
[2]
Before the matter came to court Mr Mbodla delivered an amended notice
of motion in which, instead of condonation, he sought a declaratory
order that he had timeously complied with the requirements of the
Legal Proceedings Act. The basis for this contention was that
in
terms of that Act a debt did not become due until he had knowledge of
the identity of his debtor and the facts giving rise to
the debt. He
contended that he had only acquired this knowledge in April 2011 and
that a notice given on his behalf on 2 June 2011
was accordingly
timeous notice. The court below (Griffiths J) granted a declaratory
order to this effect. The appeal is with his
leave.
[3]
The affidavit by Mr Mbodla in support of
his application largely reproduced his particulars of claim. The only
facts relevant to
the plea of prescription that it contained were the
date of the accident, that he was treated at the Nelson Mandela
Hospital and
some general allegations of negligence on the part of
the hospital staff. Insofar as his knowledge of the facts giving rise
to
his claim was concerned all that he said was that he was a lay
person and not conversant with the law, in particular the law
relating
to vicarious liability for the wrongful conduct of
employees, and that he had only learned that he had a claim after
consulting
his attorney in April 2011. He annexed to his affidavit a
copy of the medico-legal report that was also attached to his
particulars
of claim. Lastly under the heading of prejudice he
mentioned that ‘the incident was fully investigated in terms of
a detailed
departmental enquiry shortly after it transpired’.
No further information was given about this enquiry. We do not know
why
it was undertaken or what its outcome had been.
[4]
In opening the appeal counsel for the MEC
started to give us a time line of events. However, that time line was
drawn from the medico-legal
report the contents of which had not been
proved in evidence. At best the report contained hearsay statements
by its author of
facts he said he had distilled from the hospital
records and what counsel described as admissions by Mr Mbodla. To
make matters
worse the report itself had only been issued on 2 August
2011, which was after the date upon which Mr Mbodla’s attorneys
had written to the MEC giving notice of his claim. That was the
notice that the court below held had been timeously given. The report
was accordingly irrelevant to the issues before the court below.
Nonetheless it featured prominently in its reasoning, the court
holding that until it was received there was nothing to alert Mr
Mbodla ‘to the fact that he had not received optimal
treatment’.
[5]
The reality was that the issue of
compliance with the Legal Proceedings Act and the question of
prescription could not properly
be determined on the facts before the
court below. The facts in Mr Mbodla’s founding affidavit were
too cryptic, too inadequate
and too confusing to found a decision in
his favour. In some respects there were glaring contradictions. For
example, he said that
he only realised that he had a claim when he
consulted with his attorney in April 2011. However, the papers
include a letter from
the attorney to the MEC in which he said that
Mr Mbodla had consulted with him in December 2010 and it was then
that he became
aware that he had a claim. As the MEC’s Rule
6(5)
(d)
(iii)
notice pointed out the affidavit did not say why Mr Mbodla waited for
over four years to consult an attorney, or why he eventually
did so,
or what he had done in the intervening period to address his
disabilities. On the other hand the failure of the MEC to
place any
facts before the court from the hospital records in relation to Mr
Mbodla’s treatment left the entire picture unclear.
[6]
In those circumstances it was inappropriate
for the court below to reach a final conclusion on the issue of
prescription and compliance
with the statute on the papers alone. The
fault for the shortcomings in the evidence was attributable to both
parties. Mr Mbodla’s
founding affidavit needed to be more
forthcoming in regard to the history of events and it can rarely, if
ever, be the case that
a question of prescription, involving
constructive knowledge of certain facts, can be resolved as a
question of law alone. The
MEC should have placed facts before the
court to substantiate the plea of prescription.
[7]
Rule 6(5)
(g)
deals with this situation as is
apparent from its opening words, which are:
‘
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to it seems
meet with a
view to ensuring a just and expeditious decision.’
This
Court has confirmed that the powers this rule vests in the court are
extremely broad and should be exercised to ensure that
matters are
decided justly and expeditiously.
[3]
They are usually exercised because of the presence of disputes of
fact in the papers before the court, but the rule is not confined
to
that situation.
[4]
If a
court is unable to make a just decision because the parties have
failed to place sufficient information before it to
enable it to do
so, it may in an appropriate case, exercise its powers under the rule
to give directions that will enable the deficiencies
to be remedied
and a just decision to be rendered.
[8]
This is such a case, particularly when one
bears in mind the consequences of a decision either way on the point
of prescription.
If Mr Mbodla fails, his claim will be dismissed. If
the plea is dismissed, the MEC will be faced with exhuming medical
records
from eight years ago and tracing witnesses who can testify in
regard to Mr Mbodla’s treatment. The claim is substantial. In
those circumstances I am satisfied that this is a case where the
court below should have acted in terms of Rule 6(5)
(g)
and made an order referring the issues
in dispute for the hearing of oral evidence. When this possibility
was raised with counsel
they both accepted that it would be
appropriate to confine such a reference to the issue of prescription.
Counsel for the MEC accepted
that if the plea of prescription fails
then the letter of 2 June 2011 constituted compliance with the notice
requirement in the
Legal Proceedings Act.
[9]
In the circumstances I make the following
order:
1
The appeal is upheld and the order of the
court below is set aside and replaced by the following order:
‘
(a)
The application is referred for the hearing of oral evidence on the
question whether the Plaintiff’s claim had prescribed
before
the service of summons.
(b)
The plaintiff shall appear to be examined
and cross-examined at the hearing of such oral evidence.
(c)
The provisions of Rules 35, 36, 37 and 38
shall apply to the hearing of such oral evidence.
(d)
The costs of the application are reserved
for decision by the court hearing such oral evidence.’
2
The costs of the appeal, including the costs of the application for
leave to appeal, are to be costs in the application.
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For appellant: P J
de Bruyn SC (with him V Kunju)
Instructed by:
The
State Attorney, Mthatha and Bloemfontein.
For respondent: A G
Dugmore
Instructed by:
Nonxuba Inc,
Johannesburg and
Webbers,
Bloemfontein.
[1]
Section 3(4)
(b)
(i)
of the Legal Proceedings Act.
[2]
There appears to be confusion over the simple question of where Mr
Mbodla received treatment.
[3]
Nkwentsha
v Minister of Law and Order and Another
1988
(3) SA 99
(A) at 117B-f, where the court held that it was wide
enough to warrant the grant of an order that a detainee held under
emergency
regulations be produced to court to give evidence,
notwithstanding a regulation that prohibited anyone from having
access to
the detainee without the consent of the respondent.
[4]
Moosa
Bros & Sons (Pty) Ltd v Rajah
1975
(4) SA 87
(D) at 91A-E.