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[2023] ZAECBHC 31
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Matini v Member of the Executive Council for the Department of Health Eastern Cape Province - Costs (169/2017) [2023] ZAECBHC 31 (19 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. 169/2017
NOT
REPORTABLE
In
the matter between:
LUZUKO
MATINI
Applicant
/
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF HEALTH
EASTERN
CAPE PROVINCE
Respondent
/
Defendant
JUDGMENT
IN RESPECT OF COSTS
HARTLE
J
[1]
The matter before me concerns the costs of two applications, one
initiated by the applicant (who I shall refer to by his designation
in the main action as “the plaintiff”) and the
other
(omnibus application) initiated by the respondent (“the
defendant”), enrolled for hearing but removed from the
roll
without a tender of costs.
[2]
The first application launched on 22 May 2022 (in its primary form)
sought to redress the defendant’s ostensible failure to have
complied with an order of Mjali J, dated 29 March 2022 (“the
rule 30A application”),
[1]
which included as a consequence a prayer that the defendant’s
plea to the plaintiff’s claim be struck off or dismissed.
The need for such an austere measure had fallen away by the time the
matter was argued before me, but what remained in contention
was the
plaintiff’s entitlement to the costs of the application, prayed
for on the punitive scale of attorney and client.
[3]
The second (omnibus) application initiated by the defendant (issued
on 25 August 2022 and set down for hearing on 27 September 2022)
concerned firstly the rescission of an order by Zilwa J made at
trial
roll call on 19 August 2022, days before the main action was due to
run on trial, certifying that the matter was trial ready.
The
second part of it purported to seek condonation for a raft of
failures by the defendant to comply with prior orders and or
directives of this court regarding her lack of compliance with the
provisions of uniform rules 36 (2) and 36 (9) respectively.
[2]
[4]
It is a misconception that either of the defendant’s
applications
were withdrawn. They were indeed enrolled at the
time of their issue in August 2022 for hearing on 27 September 2022,
but
the first one for rescission, actually referenced by the
defendant as an application for postponement, was extensively dealt
with
in court on 28 August 2022 when the main action served before me
upon trial.
[3]
I granted a
postponement on terms as I will demonstrate below. The application
for condonation was also addressed in passing by
the defendant’s
counsel at the trial hearing, in the sense of motivating why the
defendant believed that the matter was not
trial ready and in
purporting to explain her lack of compliance with prior orders and
directives, although no order of condonation
was moved.
[4]
For some reason however both matters remained on the roll and on 19
September 2022 the state attorney acting on behalf of
the defendant
filed a notice of removal of “
the
application
[5]
from the
roll set down for the 27
th
September
2022,”
prompted
no doubt by the fact that on that same day the plaintiff had
delivered a notice to oppose and an answering affidavit in
respect of
each application as if they were still alive.
[5]
Referencing the provisions of uniform rule 41 (1)(a) read together
with subrule (c), the plaintiff’s attorneys thereupon sought to
prevail upon the state attorney to tender the costs occasioned
by the
unilateral supposed withdrawal of “the application”
[6]
on the attorney and client scale.
[7]
There was evidently no reaction on behalf of the defendant to correct
this supposed irregularity (by the absence of the costs
tender
insisted upon) and the plaintiff duly filed a notice of application
(as a tangent to or amplification the rule 30A application)
to seek
such costs.
[6]
There is in my view no reason why the plaintiff should not be
entitled
to the costs occasioned by the
removal
of the matter
from the roll as well as the costs of moving an application for such
costs when a tender for any costs at all was
not forthcoming. A
party removing a matter without a cost tender must expect that costs
will follow that result unless there
is some obscure reason why the
other party should bear those costs. None was provided in this
instance. I therefore propose
to grant the plaintiff’s prayer
in this respect relative to a removal as opposed to a withdrawal of
an application, but I
am not prepared to grant costs on a punitive
scale as the reasons motivated for these go to the question of why
the rescission
application was persisted with at all, if indeed the
defendant meant to do so. In my opinion I thought it was clear
that
the efficacy of both applications had served their purpose on 28
August 2022.
[7]
To be clear, there was no application
withdrawn
by the defendant’s notice of removal.
[8]
I assume (as I must in the absence of any explanation set forth by
the defendant) that the state attorney must have realised
that the
two applications for rescission and condonation respectively (which
in the first respect had become academic and in the
other probably
did not require a hearing but to simply be given recognition to by
the court as an explanation for the defendant’s
default) should
not have remained on the unopposed motion court roll beyond their
being dealt with on 28 August 2022. (I
cannot rule out the
possibility that the defendant wished to remove them in order to
enrol them ultimately as opposed applications,
but this is not an
aspect I need to determine.)
[9]
What wasted costs were occasioned by the
removal
will of course be for the taxing master to decide.
[8]
Concerning the rule 30A application, the plaintiff
claims damages from the defendant in the main action arising from
negligent care
administered to him by staff at the Stutterheim
Hospital to which he was admitted on 23 August 2014 after presenting
with a swollen
thigh and mass. As a result of a faulty
insertion of a drip to his right arm and a failure to monitor and
prevent excessive
infusions of fluid through this conduit, his blood
circulation was compromised, and he permanently lost the use of his
arm.
[9]
The defendant pleaded a denial that its staff
members were negligent in treating the plaintiff.
[10]
The matter was ultimately enrolled for hearing,
the parties having agreed to separate quantum from merits.
[11]
The focal point being whether the defendant’s staff were
negligent in all the circumstances,
the views of an orthopaedic
surgeon would have been largely determinative of the matter.
The plaintiff’s legal representatives
thus filed an expert
notice and summary of such an expert at the earliest opportunity with
the expectation that the defendant would
do likewise.
[12]
At the point of the filing of the parties’
initial Preparation Checklist for Certification of Trial Readiness of
Cases Subject
to Case Flow Management in June 2020 it was flagged
that the defendant, who had already provided an undertaking that she
would
do so by 15 July 2020, had yet to file her expert report in
respect of the merits.
[13]
On the basis of her undertaking aforesaid and
indication that she would advise the plaintiff in writing of the
progress with regard
to such appointment or his referral to any
medical experts in preparation for her defence on the merits, the
parties agreed to
adjourn the case management conference up to the
first week in September 2020.
[14]
The matter served before Lowe J more than a year
later on 6 and 28 October 2021 respectively for case management.
Evidently by reason
of the fact that the defendant had not yet met
her undertaking with regard to the filing of an expert notice or
report, he was
not satisfied that the matter was trial ready but
urged upon her to indicate what experts would be engaged and to
advise when her
reports would be filed. The defendant was placed on
terms on 6 October 2021 (in clause 2) to make her election to call an
expert
within 7 days of the judge’s directive. In the second
directive issued on 28 October 2021, he ordered the defendant to
comply
with his earlier directive and postponed the matter for a
period of two weeks.
[15]
The matter came before me for case management on
19 November 2021. Based on submissions made before me (and my view
formed at that
time that the plaintiff was being prejudiced by the
defendant’s failure to get on with it), I requested the
registrar to
forthwith allocate a trial date in respect of the merits
and issued a further directive in the following terms:
“
The
defendant is requested to provide an explanation to the case
management judge concerning why the prior directives of lowe J
have
not been responded to and in any event is directed by the end of the
present term to file her notices in terms of rule 36
(9) (a)
indicating which experts she intends to call in support of her
defence and thereupon to comply strictly with the provisions
of
amended rule 36 (9).”
[16]
The defendant failed to comply with either my
directive of those of Lowe J, all of which were collectively focused
on getting her
to the point of deciding whether she would engage an
expert and thereupon comply with the provisions of rule 36 (9) in
this respect.
On 29 March 2022 pursuant to an interlocutory
application launched by the plaintiff to address the defendant’s
failure to
embrace her trial preparation obligations, Mjali J issued
an order in the following terms:
“
1.
The defendants failure to comply with the directive of this court by
Mr. Honourable Justice
L Lowe dated 6/10/2021, particularly clause 2
thereof, is hereby declared irregular and reviewed;
2.
The defendant is directed to rectify such irregular and unlawful
conduct, act
promptly and comply accordingly with said directive
within 15 (fifteen) days from the date of this order;
3.
The defendant is directed to pay the cost of this application at a
punitive scale
of attorney-client scale.”
(Sic)
[17]
On
21 June 2022 the matter came before me in motion court pursuant to
yet another interlocutory application to redress the defendant’s
lack of compliance with the court rules and her failure to do what
the court had ordered her to in four preceding orders. The defendant
had by this stage, quite spectacularly, still not engaged an expert.
Counsel appearing on behalf of the parties presented me with
a draft
order pursuant to which they agreed that the defendant would issue a
notice in terms of rule 36 (2)
[10]
to
subject the plaintiff to a medical examination by the defendant’s
own medical experts on or before 8 July 2022, which draft
was made an
order by me. The defendant was, once again, ordered to pay the costs
of the application on an attorney and client scale,
also by
agreement.
[18]
On 12 August 2022 the matter came before Zilwa J
on trial roll call as indicated above. I am advised that there
was no appearance
by the defendant at this sitting and, not
surprisingly given the defendant’s failure even at that point
to have geared itself
up for trial, to have complied with numerous
orders and directives, and her ostensible flagrant disregard of the
uniform rules
of court and standard case flow management practices
applicable, he issued an order confirming that the matter was trial
ready,
certainly I imagine from the perspective of the plaintiff who
would otherwise have been egregiously disadvantaged.
[19]
On
29 August 2022 the matter again came before me in the trial court.
Again, quite disappointingly, the plaintiff had not
yet been examined
by the defendant’s expert, but she had had the gall to issue
out the application to rescind the order of
Zilwas J given at trial
roll call certifying that the matter was trial ready.
[11]
[20]
The plaintiff had also in the meantime filed the
rule 30A application in which an order was sought declaring that the
defendant’s
failure to comply with the court order of Mjali J
dated 29th March 2022 be declared irregular and reviewed, that her
failure to
comply with this order be deemed a waiver of her right to
defend the plaintiff’s claim insofar as the merits were
concerned,
t
hat her plea and defence to the
plaintiff’s claim on the merits be struck off or dismissed, and
that the plaintiff be granted
leave to set the matter down and lead
evidence to prove the merits of his claim in respect of the main
action if so advised. As
I said before, the plaintiff also presaged a
costs order on the punitive scale.
[21]
The plaintiff had heralded in the parties’ Roll Call Trial
Preparation Checklist
that this rule 30A application would be
required to be determined first, prior to the hearing of the action
on the merits on 28
August 2022, as a point
in limine
or
interlocutory issue anticipated to arise at the hearing.
[22]
When the matter was called before me on trial the plaintiff expected
me to determine the
interlocutory application, but the defendant
instead pressed upon me to grant her a further extension to have the
plaintiff examined
by her expert. This application was firmly
resisted by the plaintiff. Evidently arrangements had been made
for an orthopaedic
surgeon to consult with the plaintiff in East
London but vitally the protocol determined in rule 36 had not been
followed by the
state attorney and it transpired that the plaintiff
was instead in Elsies River and would need to be seen there, which
was at least
an indication in the right direction that some attempt
was being made by the defendant, finally, to meet her obligations.
In
order to secure this win, the parties adjourned to my chambers at my
request for a pretrial conference where we engaged with
the obstacles
standing in the way of the trial proceeding and mapped out a plan
going forward. My focus first and foremost
was in getting the
practicalities sorted so that the much-vaunted examination might
happen and yield a report. The plaintiff
at my prompting and in
these circumstances relented that the rule 30A application (well
essentially the determination of the issue
of costs in respect of
this application) stand over for determination later on.
[23]
The defendant was, despite the further pass which
I indicated to the parties I intended giving her, not about to be let
off lightly.
In brief reasons given before issuing the order
granting her a postponement and incorporating a case management
directive, I noted
as follows:
“
I
have listened to the parties’ submissions in respect of the
application before me. In my view the predicament in which the
defendant finds herself cannot be laid before anyone's door but her
own. I'm further alarmed at the extent to which the rules of
court
and case management directives of my colleagues have been flagrantly
disregarded by her. The request before me is for a postponement
and
the ruling that I make herein does not absolve her of her breach and
general disregard aforesaid or her patent lack of respect
for this
court. I suggest that she explains this behaviour and seeks the
court's condonation to the extent that this is required.
For present purposes
however I am satisfied that it appears necessary that the defendant
appoints an orthopedic surgeon to examine
the plaintiff and to form
an independent opinion concerning the conditions suffered or injury
sustained by him in the Sutterheim
Hospital upon his admission for
treatment on 23 August 2014. The defendant must however pay the cost
for the consequences of her
inconvenience and prejudice to the
plaintiff and the abuse of this court's institutional processes
regarding case management.”
[24]
In the result I issued the following order/case
management directive:
“
[1]
The application for a postponement
sine die
is granted,
provided that the defendant is to pay the wasted costs occasioned by
the postponement on the scale of attorney and
own client.
[2]
The defendant,
nomine officio
, is further directed to show
cause, on affidavit and/or at her election in court when the matter
is called on trial at the latest,
why she should not be held liable
for the wasted costs envisaged by prayer 1
de bonis propriis
.
[3]
It is recorded that the plaintiff’s opposed interlocutory
application dated 30 May
2022 remains extant and may at the
plaintiff’s election be enrolled for determination if and when
necessary.
[4]
The defendant is directed to make her arrangements for the plaintiff
to be examined in Cape
Town by an orthopaedic expert, and to file the
requisite notice in terms of rule 36 (2), within 7 days.
[5]
The defendant, as undertaken, is further directed to file her
expert’s notice and
summary arising from the examination within
two weeks of his/her consultation with the plaintiff in Cape Town.
[6]
The defendant records that no other expert testimony will be relied
upon save that of an
orthopaedic surgeon.
[7]
The defendant records further that the issue of
locus standi
raised by her in the plea will not be persisted with.
[8]
The defendant is directed to discover the Stutterheim Correctional
Centre’s medical
records concerning the plaintiff and to make
copies available to the plaintiff’s attorneys within one
week.
[12]
[9]
The defendant is further directed to make these available to her own
expert before the plaintiff’s
consultation inasmuch as they may
be relevant and have a bearing on the condition suffered or injury
sustained by the plaintiff
forming the subject matter of the damages
claim.
[10]
The registrar is requested to allocate preference to the plaintiff’s
request to re-enroll the
matter on the trial roll once the defendant
has filed her expert notice and report.”
[25]
Having
given the plaintiff leeway to reinstate the rule 30A application he
took up the cudgels and enrolled the matter for hearing
on 22
November 2022. I point out that the defendant’s much
anticipated expert report was ultimately only served and filed
on 17
February 2023, the defendant remaining in breach of the several
preceding orders/directives which also by necessary implication
meant
that the plaintiff could not request the reenrollment of the action
on the trial roll.
[13]
This
much was conceded by her in her answering and supplementary
affidavits filed,
[14]
namely
that she was in breach. However, her stance was that she was doing
what she could and had already been excoriated and penalized
by the
punitive costs orders outlined in paragraph [24] above and on the
basis that no “further prejudice” had emerged
so to speak
since the date of my order.
[26]
I was informed that when the matter (duly reinstated) served on the
motion court roll on
22 November 2022 Beshe J intimated that the rule
30A application was not ripe for hearing since the plaintiff needed
to file a
replying affidavit. A consensual order was made by
the parties that the matter thus be removed from the roll with costs
reserved.
The reserved costs also fall to be determined by this
court.
[27]
The papers were duly supplemented and the notice of application
reflected the additional
prayers requested to extend its reach to all
the ancillary aspects. There was, for example, a request added
to condone the
filing of the plaintiff’s supplementary
affidavit and for the late filing of his replying affidavit, none of
which relief
was resisted.
[28]
As I indicated above the defendant continued to
remain in breach of numerous orders/case management directives and
the rules of
court until the report of Dr Bandile Mapekula,
specialist orthopaedic surgeon, under cover of a notice in terms of
rule 36 (9)
(a), was delivered on 17 February 2023. Ironically
the report was produced on the same day as the examination of the
plaintiff
on 1 September 2022, but filed five months later. It
confirms that the plaintiff sustained an acute compartment syndrome
of his
right hand and forearm after the intravenous infusion
infiltration. The doctor opines in this respect that: “
This
is an avoidable complication with regular monitoring care and
assessment of intravenous infusion sites.”
[29]
The outcome of the plaintiff’s examination demonstrates the
enormous prejudice to
him by the unnecessary delay, not to mention
the extreme callousness of the defendant in frustrating his right of
access to justice
for a period of over two years. The court’s
opprobrium of the defendant’s conduct, expressed on numerous
occasions
and symbolised by punitive costs orders along the way which
should have left their mark, were however received by the defendant
like water on a duck’s back.
[30]
The defendant has raised no valid opposition to the plaintiff’s
request for the costs
of his dogged pursuit to have the defendant
meet her obligations and to be censured accordingly. Not only is the
defendant obliged
as a litigant to comply with the rules of court
[15]
but she is also constrained under section 2 of the State Liability
Act,
[16]
early after legal
proceedings have been instituted against her nominally, in
conjunction with the head of department and the state
attorney, to
take a firm legal position in respect of such litigation.
[31]
I am mindful that I was somewhat short with Mr. Nzuzo who appeared on
behalf of the plaintiff
at the hearing (and to whom I
apologise) because the papers before me were voluminous and confusing
and the prayers seemed
to be inviting to the fore matters that had
been overtaken by my order of 28 August 2022 and following, but the
defendant could
have been in no doubt that her breach had persisted
until her expert report was ultimately delivered and that the issue
of her
liability for costs arising from the rule 30A application had
been parked for later determination. I was reminded of this
only when I ordered and perused the transcript of the proceedings of
28 August 2022.
[32]
Upon a thorough review of the history of this matter the plaintiff
was in my view perfectly
entitled to invoke the provisions of rule
30A to address the prejudice suffered by him as a result of the
defendant’s utter
disregard of the court rules and prior
directives, and is further in these alarming circumstances entitled
to ask this court, as
a mark of its displeasure, to award costs
against her on a punitive scale.
[33]
In the result I intend to make an order which more or less coincides
with the plaintiff’s
notice of set down dated 14 February 2023
save for the reservations expressed above concerning the removal
rather than withdrawal
by the defendant of her application(s) and the
obvious amendments which I consider suitable and/or necessary.
It goes without
saying that the condonation requested by the
plaintiff is also granted.
[34]
I issue the following order:
1. The
defendant is ordered to pay the plaintiff’s costs of the rule
30A application commenced on 30 May
2022 on the scale of attorney and
client, such costs to include the reserved costs of the enrolment of
the application on the opposed
motion court roll of 24 November 2022.
2. The
defendant is liable to pay the costs occasioned by the
removal
of the application(s) initiated on 19 August 2022 from the motion
court roll of 27 September 2022, including the costs of the
application in terms of rule 41 (1) (c), such costs limited to the
party and party scale.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
23
March 2023
DATE
OF JUDGMENT:
19
September 2023
Appearances:
For
the plaintiff
:Mr.
S Nzuzo instructed by Sipunzi Attorneys, East London (ref. Mr
Sipunzi).
For
the defendant
:Mr.
Z M Maseti instructed by The State Attorney, East London (ref. Ms
Yoba).
[1]
Rule
30A deals with non-compliance with rules, requests, notices and
orders and was recently amended to include a specific reference
to
orders made in a judicial case management process referred to in
Rule 37A. a party on the receiving end of the non-compliance
of
orders arising in a case management setting can invoke this rule to
seek an order directing that a case management directive
inter
alia
be
complied with or that the defaulting party’s claim or defence
as the case may be, consequently be struck out.
[2]
I
was handed this pack of applications on 28 August 2022 in the trial
court.
[3]
This
will be apparent from a transcript of the proceedings before me on
that date.
[4]
On 19 November 2021 I issued a case management directive ordering
the defendant to provide an explanation to the case management
judge
as to why she had been remiss in complying with the prior case
management directives of my colleague, Lowe J. Those advising
her no
doubt felt a need on her part to account for her failure to comply
with several directives relating to her obligation
to file an expert
notice.
[5]
It
is not clear which application was meant.
[6]
I assume that this is a reference to the rescission application.
[7]
The
plaintiff’s notice of application dated 5 December 2022
refers.
[8]
Annexure F to the rule 30A application.
[9]
The
defendant’s counsel conceded that the applications no longer
served any purpose so this is an unlikely scenario.
[10]
The typist mistakenly typed rule 34 (4).
[11]
This
appears to be a growing new trend at trial where state parties
ignore the obligations imposed upon them by the rules of court
to
make ready for trial, perfunctorily go through the case management
processes and agree that matters are ready to run, but
at the doors
of court decide they need to engage an expert. Instead of dealing
with this as a belated decision with huge ramifications
for the
plaintiff party which will warrant a postponement at the state’s
expense and an appropriate application for condonation
as the
amended rule 36 (9) behoves, and despite the fact that the case
management regime imposes a mutual obligation on the state
itself to
ensure that matters are properly ready to run on trial, they instead
impugn the order given at trial roll court, made
with their consent
or implied agreement, that the matter is trial ready. See, for
example,
Tyibilika
v MEC for Health, EC
(579/2013)
[2021] ZAEC BHC 38 (30 November 2021).
[12]
It transpired that the plaintiff had been detained at some stage
hence the relevance of these records.
[13]
See
paragraph 10 of my order of 28 August 2022.
[14]
The supplementary affidavit is dated 16 November 2022.
[15]
And more particularly the provisions of rule 37A in respect of case
management, which is the focus in this matter.
[16]
No. 20 of 1957.