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[2023] ZAFSHC 208
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L.M.M obo R.L.M v Member of the Executive Council for Health of the Free State Province (3159/2021) [2023] ZAFSHC 208 (30 May 2023)
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 3159/2021
Reportable: NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
In the matter between:
L[...]
M[...] M[...] o.b.o
Applicant
R[...] L[...] M[...]
and
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
Respondent
HEALTH
OF THE FREE STATE PROVINCE
HEARD
ON:
11 MAY 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
the hand-down are deemed to be 16h00 on 30 May 2023.
[1]
The central feature in this matter is whether a notice of intended
legal proceedings to be given to
an organ of state complies with the
Act
[1]
if it contains sparse
information.
[2]
The applicant approached the court requesting an order in the
following terms:
“
1.
Confirming that Applicant’s notice of her intention to
institute legal proceedings in terms of Section 3 of the Institution
of Legal Proceedings Against Certain organs of State Act 40 of 2022
was timeously filed, alternatively granting the applicant condonation
for late service of her notice of her intention to institute legal
proceedings in terms of Section 3 of the Institution of Legal
Proceedings Against Certain organs of State Act 40 of 2022;
2. Costs of this
application to be costs in the cause;
3. Further and/or
alternative relief.”
[3]
The application was opposed on the basis that the notice dated 10
April 2017 which was sent via registered
post to the defendant, did
not comply with the provisions of the Act in that it did not set out
the facts giving rise to the debt.
[2]
Brief background
[4]
The applicant (as plaintiff in her representative capacity as the
mother of the minor child) issued
summons against the respondent (the
defendant in the action) based on medical negligence of the
provincial health facilities which
resulted in the minor child
suffering from cerebral palsy. A plea on the merits was delivered by
the respondent (defendant) wherein
it was, amongst others, denied
that the requisite notice was given and the applicant (plaintiff) was
required to seek the requisite
condonation.
[3]
[5]
On 19 July 2015, the applicant was admitted to the Elizabeth Ross
Hospital having complained of low
abdominal pains but was discharged
on 20 July 2015 as it was recorded that she had false labour or UTI.
She was re-admitted on
21 July 2015 but was transferred to the
Mofumahadi Manapo Mopeli Hospital where she later gave birth to a
baby with cerebral palsy.
[6]
Having consulted with her lawyers, a statutory notice dated 31
October 2016 was served on the respondent
by registered mail on 24
November 2016. However, the notice was addressed to the Member of the
Executive Council for Health, Gauteng
Province but bore the
respondent’s correct address in Bloemfontein. The respondent
pointed out to the applicant that the
notice did not comply with the
Act and could not be regarded as proper notice.
[7]
A second notice dated 10 April 2017 was dispatched to the respondent
and, according to the applicant,
no objection was raised. Save for
the erroneous address and the incorrect particulars of the claimant,
the contents of the second
notice are similar to the first. The
contents of the second notice read as follows:
“
Dear
Sir/Madam
Re:
LETTER OF DEMAND/NOTICE IN TERMS OF ACT 40 OF 2002 OUR CLIENT: M[...]
L[...] M[...] obo R[...] L[...] M[...]
___________________________________________________________
1.
We refer to the above matter and act
on behalf of our
M[...]
L[...]
M[...] obo R[...] L[...] M[...].
2.
Our client has instructed us to
institute legal action against Member of the Executive Council for
the Health of the Free State
Provincial Government for recovery of
damages in the amount of
R
15 000 000.00 (Fifteen Million Rand).
3.
The above mentioned damages suffered
are as a result of contractual and delictual breach which caused
serious injury and harm to
the minor due to the M.E.C medical and
nursing staff’s conduct when rendering medical services at
MANAPO HOSPITAL
on
or about the
22 JULY 2015.
4.
The Member of the Executive Council
as a representative of Free State Provincial Government is liable for
the act/or omission of
the employees of Free State Provincial
Government therefore they are liable for the debt and/or damages due
to our client.
5.
This letter serves as a demand and
Notice in terms of the Institution of Legal Proceedings against
Certain State Organs, Act 40
of 2002.
6.
Your urgent response is awaited.
Yours faithfully”
[8]
On 19 August 2022, a third notice was served on the respondent. This
notice contained more details and
information than the previous two
notices. It therefore enlarged or expatiated on the information
contained in the previous two
notices. It is this notice that is the
bone of contention and that Mr Soni, who represented the respondent,
submitted was central
to the dispute. The first notice, he submitted,
was not one contemplated in section 3 of the Act as it was not
addressed to the
respondent but to the MEC of Health, Gauteng
Province. The second notice, he contended, did not comply with what
was required in
terms of section 3(2)(b) of the Act especially
because the third notice contained the information that was required
and that was
within the knowledge of the applicant and her attorneys
from 30 October 2016. He argued further that there was no explanation
tendered
in the notices for the absence of that information.
[9]
It is common cause that the applicant was advised of her claim and
the legal requirements on 30 October
2016 when she consulted with her
attorneys who had obtained the hospital records on 29 October 2016.
That being the case, the requisite
notice should have been served by
30 April 2017. The third notice served on 19 August 2022 was out of
time by more than five (5)
years from the time the applicant became
aware of the identity of the organ of state and the facts giving rise
to the debt and
the particulars of the debt, argued Mr Soni. He
contended that the applicant failed to show that good cause existed
to satisfy
the requirements set out in section 3(4)(b)(ii) of the Act
for the failure to comply with section 3(2)(a)(i) of the Act, namely,
to serve the notice within six (6) months of acquiring the requisite
notice. Accordingly, no case for condonation had been made
out and
the application for condonation in respect of that notice fell to be
dismissed with costs.
[10] The
applicant seeks an order that is declaratory in nature confirming
that her notice of intended legal proceedings
given to the organ of
state was in compliance with the provisions of the Act and that it
was timeously filed. In the alternative,
she seeks condonation for
the late service of such notice. The question that arises is whether
the second notice is valid and complies
with the provisions of the
Act.
[11]
According to Mr Soni, two questions arise in this case, namely,
whether the first two notices comply with the requirements
of section
3(2)(b) and does good cause exist for the long delay in respect of
the third notice. According to him, the second notice
did not meet
the requirements of section 3(2)(b) of the Act. However, no
authorities were advanced for this standpoint. The only
authority he
relied on was the
Minister
of Agriculture and Land Affairs v SJ Rance (Pty) Ltd
[4]
which
was quoted in support of the respondent’s submission that the
applicant filed the third notice way out of time. This
authority as
per Majiedt JA, as he then was, had to do with condonation in
circumstances relevant to section 3(4) of the Act.
[12]
In this case
,
and on a proper consideration of the respondent’s contentions,
it is not disputed that a notice was given to the respondent
in
compliance with both sections 3(2)(a) and 4(1) of the Act, i.e., that
the respondent served on the organ of state by certified
mail a
notice within six (6) months from the date on which the debt became
due. What is in issue is whether the applicant complied
with sections
(3)(2)(b)(i) and (ii). In his written heads of argument, Mr Soni
stated that “
if
the organ of state relies on a creditor’s failure to serve the
notice within the six (6) month period, the creditor may
apply to
court for condonation. 22.
In
this case, the respondent relies on the applicant’s failure to
serve a notice that complies with section (3)(2)(a) of the
Act, and
the applicant is required to apply for condonation.”
[5]
He
argued that the third notice was central to his argument and that
there was no information whatsoever on why there was a five
(5) year
delay in serving the third notice on the defendant.
[13] A notice
is defined in the Act as a notice contemplated in section 3(1)(a) of
the Act. The relevant portions of
sections 3 and 4 of that Act
provide as follows:
“
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.
4.
Service of notice
(1)
A
notice must be served on an organ of state by delivering it by hand
or by sending it by certified mail or, subject to subsection
(2), by
sending it by electronic mail or by transmitting it by facsimile, in
the case where the organ of state is-“
[14]
A debt is defined in the Act as:
“
'debt'
means
any debt arising from any cause of action-
(a)
which arises from delictual, contractual or any other liability,
including a cause
of action which relates to or arises from any-
(i) act
performed under or in terms of any law; or
(ii) omission
to do anything which should have been done under or in terms of any
law; and
(b) for
which an organ of state is liable for payment of damages,
whether
such debt became due before or after the fixed date;”
[15]
The
conventional explanation for demanding prior notification of
intention to sue organs of State is that the state, with its
extensive
activities and large staff which tends to shift, needs the
opportunity to investigate claims laid against it, to consider them
responsibly and to decide before getting embroiled in litigation at
public expense, whether it ought to accept, reject or endeavour
to
settle them. From time to time there have been judicial
pronouncements about how such provisions restrict the rights of its
potential litigants. However, their legitimacy and constitutionality
are not in issue.
[6]
[16] A similar
provision was contained in the erstwhile section 25 of the Compulsory
Motor Vehicle Act 56 of 1972 where it
was held in
Nkisimane
and Others v Santam Insurance Co Ltd
[7]
that the purpose of the section was to ensure that, before being sued
for compensation, an authorized insurer would be informed
of
sufficient particulars about the claim and would be given sufficient
time so as to be able to consider and decide whether to
resist the
claim or to settle or compromise it before any costs of litigation
were incurred.
[17] In that case,
[8]
it was claimed that the claim forms were not completed in the
prescribed manner but the court held that each MVA form, including
its medical report, read as a whole, amounted to substantial
compliance with the requirement of s 25 (1), that the contents of
the
claim were set out in the manner prescribed by the regulation, in
that it set out a claim for compensation under section 21
against the
respondent as the authorized insurer of the vehicle concerned in the
accident. It afforded the respondent sufficient
information to enable
it to decide whether to resist each claim for compensation or settle
it before being sued.
[18] In
Unlawful
Occupiers, School Site v City of Johannesburg
[9]
the
grounds
for the application for eviction stated in the notice were too sparse
to meet the requirements of section 4(5)
(c)
of the
Pie Act. The court h
eld
that:
“
[24]
The question whether in a particular case a deficient s
4(2) notice achieved its purpose, cannot be considered in the
abstract.
The answer must depend on what the respondents already
knew. The appellant's contention to the contrary cannot be sustained.
It
would lead to results which are untenable.
Take the
example of a s 4(2) notice which failed to comply with s 4(5)(d) in
that it did not inform the respondents that they were
entitled to
defend a case or of their right to legal aid. What would be the
position if all this were clearly spelt out in the
application
papers? Or if on the day of the hearing the respondents
appeared with their legal aid attorney? Could it be suggested
that in
these circumstances the s 4(2) should still be regarded as fatally
defective? I think not. In this case, both the municipality's
cause
of action and the facts upon which it relied appeared from the
founding papers. The appellants accepted that this is so.
If not, it
would constitute a separate defence. When the respondents received
the s 4(2) notice they F therefore already knew what
case they had to
meet. In these circumstances it must, in my view, be held that,
despite its stated defects, the s 4(2) notice
served upon the
respondents had substantially complied with the requirements of s
4(5).”
[19] Turning to
the facts: the respondent objected to the first notice but did not
raise any objection to the second one,
which the respondent did not
deny having received. It is only in the plea which was filed in
November 2021 that the defendant denied
having received the requisite
notice and recorded that she required the applicant (plaintiff) to
seek the requisite condonation
[10]
.
It is evident from the plea that the merits of the case were
investigated by the respondent. The respondent (defendant) in its
plea made certain admissions, such as that the applicant (plaintiff)
did furnish the respondent (defendant) with the hospital records,
that the applicant was admitted to the hospitals where she was
examined and attended to by the nursing staff. It is indeed so that
the applicant did not explain why the third notice was served, but in
view of the plea filed, it appears to be
res
ipsa loquitur
or
that the notice was served out of extreme caution.
[20] Does the
second notice comply with the Act? The Act requires that
the
facts giving rise to the debt and such particulars of such debt
as are within the knowledge of the creditor must
be briefly set
out
[11]
. How these facts are
to be briefly set out is not defined in the Act. In
Weenen
Transitional Local Authority Council v Van Dyk
,
[12]
it was held that :
“
[13]
“It seems to me that the correct approach to the
objection that the appellant had failed to comply with the
requirements of
s 166 of the ordinance is to follow a common sense
approach by asking the question whether the steps taken by the local
authority
were effective to bring about the exigibility of the claim
measured against the intention of the legislature as ascertained from
the language, scope and purpose of the enactment as a whole and
the statutory requirement
in particular (see Nkisimane and
Others v Santam Insurance Co Ltd
1978 (2) SA 430
(A)at 434A
B).Legalistic debates as to whether the enactment is peremptory
(imperative, absolute, mandatory, a categorical imperative)
or merely
directory; whether 'shall' should be read as 'may'; whether
strict as opposed to substantial compliance is
required; whether
delegated legislation dealing with formal requirements are of
legislative or administrative nature, etc
may be interesting, but
seldom essential to the outcome of a real case before the courts.
They tell us what the outcome of the
court's interpretation of the
particular enactment is; they cannot tell us how to interpret.
These debates have a posteriori,
not a priori significance. The
approach described above, identified as '. . . a trend in
interpretation away from the strict legalistic
to the substantive' by
Van Dijkhorst J in Ex parte Mothuloe (Law Society, Transvaal,
Intervening)
1996 (4) SA 1
131 (T) at 1138D E, seems to be the correct
one and does away with debates of secondary importance only.”
[21] It is
noteworthy that the respondent reacted to the first notice and
pointed out the defects therein to the applicant
but did not point
out any defects in the second notice. It was only in the Plea, which
was a response to the allegations and particulars
contained in the
summons, that it was pleaded that the requisite notice was not
received. At that stage the respondent had investigated
the claim.
The second notice is clear and briefly stated the nature of the claim
and against whom it would be made. The fact that
the respondent
corrected and pointed out deficiencies in the first notice, and the
subsequent silence after the receipt of the
second notice, which is
not denied, confirms that the second notice achieved its purpose as
required by the Act.
[22]
Despite the reliance on the
Minister
of Land Affairs v SJ Rance
,
[13]
and the denial of having received the requisite notice, the
respondents failed to file a special plea to the summons to indicate
that no notice was ever sent out as required by the Act. I therefore
disagree with the notion that the applicant should have applied
for
condonation as the applicant had duly given the respondent written
notice of her intention to institute legal proceedings against
the
respondent. Had the applicant failed to issue the notice, it would
have been imperative for her to apply for condonation as
suggested.
It is not in issue that the second notice was duly despatched as
required by s 4 (1) of the Act. In the premises, the
defences raised
by the respondent are without substance. The application must
therefore succeed.
[23] I make the
following order:
ORDER:
1.
The applicant’s notice of her
intention to institute legal proceedings in terms of section 3 of the
Legal Proceedings Against
Certain Organs of State, Act 40 of 2002 is
confirmed.
2.
Costs will be costs in the cause.
MHLAMBI, J
On
behalf of the applicant:
Adv.
D. De Kock
Instructed
by:
Webbers
Attorneys
96
Charles Street
Bloemfontein
On
behalf of the respondent:
Adv.
V Soni SC & Adv. N. Khooe
Instructed
by:
Office
of the State Attorney
11
th
Floor, fedsure Building
49
Charlotte Maxeke Street
Westdene
BLOEMFONTEIN
[1]
Section
3(2)(b)(i) & (ii) Act 40/2022
[2]
Para 5.4 of the Answering Affidavit.
[3]
Para 30 of the Plea on page 40 of the Indexed Papers.
[4]
2010 (4) SA 109 (SCA).
[5]
Paras 20 and 21 of the respondent’s heads of argument.
[6]
Minister of Agriculture and Land affairs, supra.
[7]
1978(2) SA 430 (A);
Mohlomi
v Minister of Defence
1997
(1) SA 124 (CC).
[8]
Nkisimane, supra.
[9]
2005 (4) SA 199 (SCA).
[10]
Para 30 of the Plea.
[11]
Section 3(2)(b)(i) and (ii).
[12]
2002 (4) SA 653 (SCA).
[13]
Supra.