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2023
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[2023] ZAFSHC 120
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Edgar v MEC For Health, Free State (Provincial Department Of Health) (6087/2022) [2023] ZAFSHC 120 (19 April 2023)
FLYNOTES:
MEDICAL NEGLIGENCE AND NOTICE TO STATE
CIVIL
PROCEDURE – Organ of state – Notice –
Condonation – Injury to foot – Alleged negligence
in
treatment causing compartment syndrome – Consultation with
attorneys, time taken in obtaining medical records and
then
medico-legal report – Delay not unreasonable in the
circumstances nor male fide – Fair administration of
justice
demands that condonation be granted – Opposition to
application for condonation in face of the strong merits
of the
case and complete lack of any prejudice – MEC to pay costs
of application – Institution of Legal Proceedings
Against
Certain Organs of the State Act 40 of 2002, s 3(4).
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 6087/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
KERRY
LEE THERESA EDGAR
Applicant
and
THE MEC FOR HEALTH,
FREE STATE
Respondent
(PROVINCIAL
DEPARTMENT OF HEALTH)
CORAM:
OPPERMAN, J
HEARD
ON:
13 APRIL 2023
DELIVERED
ON:
19
APRIL 2023. The judgment was handed down electronically by
circulation to the parties’ legal representatives by email and
release to SAFLII on 19 April 2023. The date and time for hand-down
is deemed to be 19 April 2023 at 15h00
JUDGMENT
BY:
OPPERMAN,
J
SUMMARY:
Opposed application for
condonation in terms of section 3 of the Institution of Legal
Proceedings Against Certain Organs of the
State Act, 40 of 2002
JUDGMENT
[1]
The
application that lies before court for adjudication evolved from the
institution of legal proceedings for damages arising out
of alleged
negligent medical treatment administered to the applicant. The claim
in the main case is now based on the conclusion
of the experts of the
parties that drafted a “JOINT MINUTE OF MEETING” dated 5
June 2022:
[1]
1.
We agree that Kerry Edgar sustained an injury to her right foot as a
result of
a fall while hiking on 1/09/2019.
2.
We agree that this injury was diagnosed an intraarticular comminuted
calcaneal
fracture.
3.
Dr Versfeld notes that this fracture may have been a compound
fracture.
4.
We agree that this fracture could be treated in different ways,
including a closed
reduction and casting, or an open reduction and
internal fixation.
5.
We agree that, from the history and examination, she developed a
compartment
syndrome from her injuries, which was worsened by the
application of a full cast.
6.
We agree that appropriate treatment for the compartment syndrome
would have prevented
the effects of the compartment syndrome.
7.
Dr Versfeld is of the opinion that failure to trat the early symptoms
and signs
of the compartment syndrome was negligent treatment.
8.
Dr Versfeld is of the opinion that the compartment syndrome has
resulted in serious
symptoms and disabilities affecting her right
foot (mostly the front part of her foot).
9.
We agree that she suffers from symptoms and disabilities related to
the compartment
syndrome affecting her right foot, which was a
preventable complication.
[2]
The parties
in casu
are at odds with each other about the
condonation applied for by the applicant in terms of section 3 of the
Institution of Legal
Proceedings Against Certain Organs of the State
Act, 40 of 2002 (the Act).
[3]
The Preamble of the Act, among others, acknowledges that South Africa
has moved from a parliamentary
sovereign state to a democratic
constitutional sovereign state; the Bill of Rights is the cornerstone
of democracy in South Africa
and that the State must respect,
protect, promote and fulfil the rights in the Bill of Rights.
[4]
It goes on to recognise that section 34 of the Constitution provides
that everyone has the
right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before a
court or, where
appropriate, another independent and impartial
tribunal or forum; the right of access to courts may be limited to
the extent that
the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom as
contemplated in section 36 of the Constitution.
[5]
The aim of the legislation is to “harmonise and create
uniformity in respect of the
provisions of existing laws… with
a uniform notice period which will apply in respect of the
institution of legal proceedings
against certain organs of state for
the recovery of a debt;…” It is not to curtail access to
courts when litigation
is properly due.
[6]
The history in cases of this nature has shown that ignorance of the
law itself, the process
and apprehension to enter the arena and
litigate in courts, have a severe impact on real access to justice.
It is not just for
the mere walking through the doors of court; it is
to summon the courage to litigate within the realm of dread for the
justice
system that ignorance, unfamiliarity and inexperience cause.
Much consideration often goes into the decision to initiate action.
It might take one person a month to ponder the issue; it might take
another longer. The reality of funds and the procurement of
evidence
also lurk.
[7]
Justice must however be effective and possible for both parties and
the State may not be
burdened with claims that are ancient to the
extent that evidence had been compromised and the veracity of the
administration of
justice derided. It is not the case here.
[8]
The
peculiarity of this case is that the joint minutes of the experts
supra
have
given clarity on the merits of the main claim on 5 June 2022. The
respondent wants more detailed explanations for the delay
in the
sending of the required notice timeously, for the failure to launch
the application for condonation as soon as she realised
that the
condonation is needed or, within a reasonable time and it is held
that she did not prove that the respondent did not suffer
unreasonable prejudice due to the delay.
[2]
[9]
The law
applicable to the facts of this case is to be found in section 3 of
the Act
[3]
and the dictum of
Premier
of the Western Cape Provincial Government NO v Lakay (184/11)
[2011]
ZASCA 224
;
2012 (2) SA 1
(SCA);
[2012] 1 All SA 465
(SCA) (30
November 2011)
.
[10]
The following in the Lakay-matter is relevant:
[12]
The next question is whether the court a quo was correct in
its conclusion that condonation should be granted for the
applicant's
failure timeously to give notice of the action to the Premier. In
terms of s 3(4), a court may grant an application
for condonation for
such failure if it is satisfied on three matters:
(i) that the debt has not
been extinguished by prescription;
(ii) that good cause
exists for the failure by the creditor; and
(iii) that the organ of
state was not unreasonably prejudiced by the failure.
[13]
This court said in Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA):
'The phrase "if . .
. [the court] is satisfied" in s 3(4)(b) has long been
recognised as setting a standard which is not
proof on a balance of
probability. Rather
it is the overall impression made on a court
which brings a fair mind to the facts set up by the parties.
See
eg Die Afrikaanse Pers Bpk v Neser
1948 (2) SA 295
(C) at 297. I see
no reason to place a stricter construction on it in the present
context.' (Accentuation added)
[17]
The second question on which a court must be satisfied is that
'good cause' exists for the failure by the creditor to
give the
notice. The minimum requirement is that the applicant for condonation
must furnish an explanation of the default sufficiently
full to
enable the court to understand how it really came about, and to
assess his/her conduct and motives: Silber v Ozen Wholesalers
(Pty)
Ltd
1954 (2) SA 345
(A) at 352H-353A, quoted in the context of the
2002 Act in Madinda's case.11 Beyond that, each case must depend on
its own facts.
As Innes CJ said in Cohen Brothers v Samuels
1906 TS
221
at 224 (in the context of an application for leave to prosecute a
lapsed appeal, but the remarks are equally appropriate to s
3(4)(b)(ii)
of the 2002 Act):
'In the nature of
things it is hardly possible, and certainly undesirable, for the
Court to attempt to [define good cause]. No general
rule which the
wit of man could devise would be likely to cover all the varying
circumstances which may arise in applications of
this nature. We can
only deal with each application on its merits, and decide in each
case whether good cause has been shown.'
(Accentuation added)
[11]
The exposition of counsel for the applicant of the events in their
Heads of Argument dated 15 March 2023
are correct and true; both in
fact and as to the submissions on the application of the law thereto
in the circumstances of the
case. These are:
1.
In and during September 2019 the Applicant was
treated for injuries to her right lower limb sustained in a hiking
accident.
2.
On 14 September 2020 the Applicant consulted her
attorneys of record concerning the treatment administered to her at
the Hospital
and the
sequelae
thereof.
3.
The Applicant has no knowledge of legal matters.
4.
The Applicant consulted with her attorneys of
record regarding a possible claim against the Respondent and
arrangements were made
for the relevant medical records to be
obtained.
5.
It took a considerable period of time to obtain
the relevant medical records.
6.
Arrangements were also made for a medical legal
report to be obtained from an expert orthopedic surgeon.
7.
The medico-legal report was received on or about
12 August 2021.
8.
The Applicant received advice regarding the claim
against the Respondent and gave instructions to her attorneys of
record to institute
the action against the Respondent.
9.
On 24 August 2021, written notice in terms of
section 3 of the Act was dispatched to the Respondent.
10.
The Applicant instituted action proceedings out of
this Honorable Court against the Respondent under case number
4398/2021.
11.
The summons was served on the Respondent on 27
September 2021.
12.
On 5 June 2022 a meeting was held between the
Applicant’s expert orthopedic surgeon, Dr GA Versfeld, and
Professor S Matshidza,
an orthopedic surgeon, who has been employed
as the expert witness for the Respondent.
13.
The expert orthopedic surgeons recorded by
agreement that the complication of compartment syndrome affecting the
Applicant's right
foot, from which she still suffers from symptoms
and disabilities, could have been prevented, had appropriate
treatment been administered
by the Respondent.
14.
The Respondent’s Plea was served and filed
on 14 September 2022 together with a Special Plea, in terms of which
reliance was
placed upon the Applicant’s failure to comply with
section 3 of the Act.
15.
On 23 November 2022 the Applicant served this
application for condonation in terms of section 3 of the Act on the
Respondent.
16.
The treatment of the Applicant at the Hospital is
well documented.
17.
All employees acting under the Respondent’s
direction and control were at all material times aware of the nature
and consequences
of the treatment administered to the Applicant.
[12]
Reading of the above convinces that there is not much more to be said
for the delay and the applicant has
shown that she has complied with
the factors set out in the Act. The respondent did not point the
court to any prejudice or complications
in the litigation of their
case. The experts had all the evidence necessary to formulate their
conclusions. The delay was not unreasonable
in the circumstances nor
male fide
. Fair administration of justice demands that
condonation be granted to the applicant.
[13]
As to costs: In the instance, costs should follow the result. The
opposition to the application for condonation
was made in the face of
the strong merits of the case for the applicant, a complete lack of
any prejudice or potential prejudice
to the case of the respondents
and a claim for detail that would not have taken the case further;
but rather, caused added delays.
The delay(s) was, conspicuously so,
not extensive or unreasonable on the facts.
[14]
ORDER
1.
Condonation is granted to the applicant in terms of section 3(4)(b)
of the Legal Proceedings Against Certain Organs
of the State Act, 40
of 2002 and she is thus granted leave to institute the action brought
under case number 4398/2021.
2. The
costs shall follow the result and the respondent is ordered to pay
the costs of this application.
M
OPPERMAN, J
APPEARANCES
On
behalf of the Applicant/Plaintiff
ADVOCATE
P.A. CORBETT SC
Mr.
T Brivik
Malcolm
Lyons & Brivik Inc.
CAPE
TOWN
c/o
Matsepes Attorneys
BLOEMFONTEIN
On
behalf of the Respondent/Defendant
ADVOCATE
D.R. THOMPSON
Ms.
R.E. Greyling
State
Attorney,
BLOEMFONTEIN
[1]
Dr.
G.A. Versfeld & Prof. S Matshidza: Annexure TB2 as attached to
the supplementary affidavit of T Brivik dated 12 April
2023.
[2]
Respondent’s
Heads
of Argument dated 4 April 2023 at paragraph 9 on pages 4 to 5.
[3]
3. Notice of intended legal proceedings to be given to organ
of state. —
(1)
No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless—
(a)
the creditor has given the organ of state in question notice
in writing of his or her or its intention to institute
the legal
proceedings in question; or
(b)
the organ of state in question has consented in writing to
the institution of that legal proceedings—
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set out in subsection (2).
(2)
A notice must—
(a)
within six months from the date on which the debt became due, be
served on the organ of state in accordance with
section 4 (1); and
(b)
briefly set out—
(i)
the facts giving rise to the debt; and
(ii)
such particulars of such debt as are within the knowledge of the
creditor.
(3)
For purposes of subsection (2) (a)—
(a)
a debt may not be regarded as being due until the creditor has
knowledge of the identity of the organ of state
and of the facts
giving rise to the debt, but a creditor must be regarded as having
acquired such knowledge as soon as he or
she or it could have
acquired it by exercising reasonable care, unless the organ of state
wilfully prevented him or her or it
from acquiring such knowledge;
and
(b)
a debt referred to in section 2 (2) (a), must be regarded as having
become due on the fixed date.
(4)
(a) If an organ of state relies on a creditor’s
failure to serve a notice in terms of subsection (2) (a),
the
creditor may apply to a court having jurisdiction
for condonation of such failure.
(b)
The court may grant an application referred to in paragraph (a) if
it is satisfied that—
(i)
the debt has not been extinguished by prescription;
(ii)
good cause exists for the failure by the creditor; and
(iii)
the organ of state was not unreasonably prejudiced by the failure.
(c)
If an application is granted in terms of paragraph (b), the court
may grant leave to institute the legal proceedings
in question, on
such conditions regarding notice to the organ of state as the court
may deem appropriate.