About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 70
|
|
Hlongwane v Member of the Executive Council of Health (4393/2022) [2024] ZAFSHC 70 (11 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/ NO
Of
Interest to other Judges: YES/ NO
Circulate
to Magistrates: YES/ NO
Case
no: 4393/2022
In
the matter between:
HLONGWANE
MARIA
APPLICANT/PLAINTIFF
and
THE
MEMBER OF THE EXECUTIVE
RESPONDENT/DEFENDANT
COUNCIL
FOR HEALTH
CORAM:
MTHIMUNYE, AJ
HEARD
ON:
30 NOVEMBER
2023
DELIVERED
ON:
11 MARCH 2024
[1]
The applicant seeks an order:
(i)
Confirming that her notice of intention to institute
legal
proceedings in terms of section 3(4) of the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002
(“the
Legal Proceedings Act”) was timeously filed; alternatively
(ii)
Condonation of the late filing of her notice of intention
to
institute legal proceedings in terms of section 3 of the Legal
Proceedings Act. The respondent opposes this application and
seeks
its dismissal with costs.
[2]
The factual matrix of this matter is as follows: During the later
stage of her pregnancy, the
applicant was referred to Fezi
Ngubentombi Hospital by Nsimaholo Clinic as a high risk pregnancy. On
presenting herself on 13 May
2020, she was informed by the staff of
Fezi Ngubentombi Hospital that there has been a mix up with dates and
was told to return
on 20 May 2020 to give birth by caesarean section.
[3]
She presented herself on 20 May 2020 and was admitted to give birth
by caesarean section. On 21
May 2020 at about 13:50 a caesarean
section was performed on her and a live baby girl was extracted from
her. No complications
were recorded. For purposes of this application
I do not deem it necessary to tabulate the progress notes of what
happened after
the delivery, save to state that at about 16:30, it
was recorded that a broad ligament pedicle was accidentally pricked
during
the caesarean section, which caused other complications. She
was then transferred to Boitumelo Hospital by ambulance and when she
woke up from ICU, she was informed that her womb had been removed as
it was damaged. She was discharged on 01 June 2020.
[4]
On 10 April 2021, the applicant consulted an attorney for the first
time and the attorneys requested
medical records on 14 April 2021.
Although the applicant, in its founding affidavit averred that the
medical records were received
only on 26 January 2022, in her
replying affidavit she conceded that they were received in October
2021. She had a follow up consultation
with her attorney on 03
February 2022, on which date she gave her attorney instructions to
proceed with the claim for damages.
On 06 June 2022, the attorney
served the section 3 notice to the respondent.
[5]
This court is called upon to determine, if the applicant has complied
with the provisions of Section
3 of the Legal Proceedings Act. In the
event that the court finds that she did not, then the court is asked
to condone the non-compliance.
It follows therefore that if the court
finds that the applicant did comply, there will be no need to deal
with the condonation
application.
[6]
The respondent opposes the primary part of this application purely on
the basis that the applicant
did not comply with the six months’
notice period and in respect of condonation, that the applicant’s
case has no merits;
that no good cause has been shown for the court
to grant condonation and that the respondent will be prejudiced if
condonation
is granted.
[7]
Section 3 of the Legal Proceedings Act reads as follows:
“
3 (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
legal proceedings in question; or
(b)
the organ of state in question has consented in writing to the
institution of that legal proceeding (s)-
(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 6 (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 from acquiring such knowledge”
[8]
Subsection (2)(a) requires that the statutory notice be issued within
a period of 6 months
from the date on which the debt became due
(my emphasis). The question that follows then is when does the debt
become due for purposes of subsection (2)(a). Subsection (3)
answers
that question as the date on which the creditor acquires ‘
knowledge
of the identity of the organ of state and the facts that give rise to
the debt’
. The pertinent question therefore for this court
to answer in this matter is, when did the applicant acquire the
knowledge referred
to in subsection (3); on 21 May 2020 or thereabout
when the caesarean section was performed or the womb was removed, OR
on 10 April
2021 when she consulted an attorney. The statutory notice
was served on 06 June 2022, which was two years after the caesarean
section
was performed and almost 14 months after the applicant first
consulted with her attorneys.
[9]
The applicant argues that the Section 3 notice was served
approximately 5 (five) months after
receipt of hospital records and 4
months from the date on which she gave the attorney instructions to
proceed. This argument falls
flat in the face of the fact that the
medical records were made available in October 2021 and not in
January 2022 as initially
averred by the applicant. She submits that
she did not know of the facts giving rise to the debt and the
identity of the debtor
as well as about the statutory notice
requirement until she was so informed by her attorney.
[10]
The applicant has argued further that she was deprived of an
opportunity to serve and file the statutory
notice within 6 months of
her consultation with her attorney by the respondent’s delay in
providing medical records.
She consulted on 10 April 2021. The
medical records were requested on 14 April 2021. It cannot be
argued that no attorney
can make a proper assessment and be able to
so advise his / her client on whether or not they have a claim having
not had sight
of medical reports. The medical reports were made
available to the attorney in October 2021 which was six months from
the date
of request. Even if this court were to be with the applicant
in this regard, she still served the notice in June 2022, eight
months
after the medical records were received. From a simple
reckoning of days method, it is apparent that when regard is had to
all
the days upon which the applicant can be said or deemed to have
acquired knowledge as envisaged by sub-section 2(a), the serving
of
the notice falls outside of the statutory six months. Consequently,
the applicant did not comply with the provisions of section
3 of the
Legal Proceedings Act in respect of the six months’ notice.
[11]
I now turn to deal with the condonation application. Section 3(4)(b)
of the same Act sets out the requirements
for condonation of
non-compliance with the timeframes set out in section 3(1) and (2)
and provides that a court may grant an application
for condonation if
it is satisfied that:
“
(i)
the debt has not been extinguished by prescription;
(ii)
good cause exists for failure by the creditor; and
(iii)
the organ of state was not unreasonably prejudiced by the failure.”
[12]
In
Minister of Agriculture and Land Affairs v C R Rance 2010 (4)
109 (SCA)
at 113A, it was stated that the requirements for
condonation listed in section 3(4)(b) are conjunctive and must all be
established
by the party seeking condonation. The phrase ‘
if
[the court] is satisfied’
has long been recognised as
setting a standard which is not proof on a balance of probabilities
but the overall impression made
on a court. This principle was
clearly enunciated in
Madinda v Minister of Safety & Security
[2008] ZASCA 34
;
[2008] 3 All SA 143
(SCA)
at para 8 as follows:
“
a standard
which is not proof on a balance of probabilities but rather an
overall impression made on the court which brings a fair
mind to the
facts set up by the parties”
I now turn to deal with
the three requirements individually.
Prescription
[13]
In my view, it is not necessary to discuss this requirement in any
detailed form as it is common cause that the
claim had not prescribed
when the summons was issued on 14 September 2022.
Good
Cause
[14]
The respondent averred that the applicant has shown no good cause for
the delay thus falling short of meeting
the second requirement for
condonation. In
Madinda v Minister of Safety & Security
[2008] ZASCA 34
;
[2008]
3 All SA 143
(SCA)
at para 12, the Supreme Court of Appeal
analysed the meaning and effect of the concept of ‘good cause’
and found it
to be more about considering of all factors which bear
on the fairness of granting the relief. These factors may
include
prospects of success, reasons for delay, sufficiency of the
explanation offered and the
bona fides
of the applicant. It is
not for this court to decide on the merits of the case. I however
have considered the applicant’s
allegations that the respondent
failed to employ suitably qualified and experienced medical
practitioners who would be able to
examine, manager and give
appropriate advice in respect of the procedure to perform a caesarean
section, as a result thereof, a
broad pedicle ligament was raptured,
causing arterial bleeding and damaging her womb. In the
event that these allegations
are proven to be true, I am of the view
that the prospects of success favour the applicant.
[15]
In respect of the causes of the delay, the applicant has submitted
that the medical records, received after
a long delay through no
fault of the applicant, had to be sent to experts for an opinion on
whether or not the applicant would
have a claim. It was only after
such an opinion was received that the notice was served. I cannot
find reasons to reject this explanation
as unreasonable and
unacceptable as ‘good cause’.
Prejudice
[16]
With regards to prejudice, the applicant submits that there would be
no prejudice. The respondent pleaded
no prejudice in its plea and in
its answering affidavit, it submitted that she “
will be
prejudiced if she was to defend a claim that has not merits…”
.
It is not for this court to decide whether or not the applicant’s
claim against the respondent has merits or not. For this
reason, I
must reject the respondent’s averment in this regard. In
the
Madinda
case, the Supreme Court of Appeal cautioned the
courts to “
be slow to assume prejudice for which the
respondent itself does not lay a basis”.
I am not persuaded
that the respondent has been unreasonably prejudiced by the
applicant’s failure to comply with the timelines
stipulated in
section 3 of the Legal Proceedings Act, neither will it be by this
court granting this condonation application.
Consequently,
I make
the following Order:
Order
1.
The application for condonation is granted.
2.
Costs shall be costs in the cause.
D.
P. MTHIMUNYE, AJ
Appearances:
For
the Applicant/Plaintiff:
Adv.
N Van Der Sandt
Instructed
by
Jerry
Nkeli & Associates Inc
c/o
Webbers Attorneys
Bloemfontein
For
the Respondent/Defendant:
Adv.
R.K. Ramdass
Instructed
by:
State
Attorney
Bloemfontein