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[2023] ZAECMHC 35
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N.S obo A.S v Member of the Executive Council for the Department of Health Eastern Cape Province (2782/2019) [2023] ZAECMHC 35 (4 July 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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FLYNOTES:
ACTUARIAL – Interim payment – Urgency – Merits
decided and quantum unresolved – High degree
of unanimity in
expert joint minutes on quantum – Child was prejudiced by
delays occasioned by prolonged trial and
prejudice was continuous
for as long as the child did not get immediate redress to
ameliorate the medical condition –
Interim payment of R3,2
million ordered – Uniform Rule 34A.
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Reportable
Case No: 2728/2019
Date heard:
/2023
Date delivered:
04/07/2023
In the matter between:
N[…]
S[…] obo A[…] S[…]
PLAINTIFF
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR
THE
DEPARTMENT OF HEALTH, EASTERN
CAPE
PROVINCE
DEFENDANT
JUDGMENT
Notyesi AJ
Introduction
[1]
This is a matter in which the plaintiff is
claiming damages in both her personal and representative capacity as
the mother and natural
guardian of her minor child, A[…] S[…].
The merits were decided in her favour on 8 October 2020. The trial is
pending
before Nhlangulela DJP concerning the appropriate award of
the quantum of damages.
[2]
The applicant, relying upon the provisions of
Uniform Rule 34A, asked for an order directing the respondent to
effect an interim
payment in the sum of R20 502 163,
alternatively, R15 million. The application was launched on an
urgent basis.
The respondent opposed the application. On 27 April
2023, I heard the urgent application in the opposed court, and
subsequent thereto,
on 2 May 2023, I granted the following order with
no reason–
“
(1)
The applicant is hereby granted leave to proceed by way of urgency in
accordance with the
provisions of Rule 6(12)(
a
)
and (
b
)
and that this court hereby condones the non-compliance and departure
from the Uniform rules of court;
(2)
The respondent is ordered to make an interim payment to the
applicant, in her representative
capacity, in the sum of
R3,200,000-00 (three million two hundred thousand rands) within 30
(thirty) calendar days of this order;
(3)
The respondent shall pay interest at the prescribed legal rate should
the amount fixed
for interim payment remain unpaid within 30 (thirty)
calendar days of this order;
(4)
The reserved costs of 4 April 2023 shall stand over for determination
by the trial
court when the quantum of damages is finally determined;
(5)
The parties are granted leave to file additional submissions, should
they so wish,
regarding the reserved costs of 4 April 2023;
(6)
The respondent is ordered to pay the costs of this application;
(7)
Any party desiring reasons for this order, may request the reasons
through the office
of the Registrar within 15 (fifteen) days from
today.”
[3]
On 12 June 2023, I was advised by the registrar of
this Court that the respondent’s attorneys filed a notice
requesting reasons
for the order. These are my reasons.
Parties
[4]
The applicant is the plaintiff in the pending
trial, which concerns the determination of the quantum of damages to
be awarded consequent
to an order dated 8 October 2020 awarding
100% liability on the merits in favour of the applicant. The
respondent is the defendant
in the pending trial. The parties shall
simply be referred to as ‘the applicant’ and ‘the
respondent’.
Issues
[5]
The questions for determination were–
(a)
Urgency of the rule 34A application; and
(b)
If urgency is established, whether or not the applicant has met the
requirements under
rule 34A and the appropriate amount for an interim
payment.
Background
[6]
The applicant instituted the present application
on an urgent basis during March 2023. The application was
initially set down
for hearing on 4 April 2023. The main relief
sought on behalf of the applicant was that the respondent should be
ordered to pay
to the applicant, in her personal and in her
representative capacity (as the case may be), interim damages and/or
agreed damages
within 30 (thirty) calendar days of the date of the
order in the following sums–
(a)
Plaintiff (personally) – R500 000
(b)
Plaintiff (representative capacity on behalf of her minor child,
A[…]) –
R20 002 163
[7]
In the alternative to the relief set out above,
the applicant asked that the respondent should be ordered to make an
interim payment
in the sum of R15 million or such lesser amount
as the court deems meet and to effect the interim payment within 15
calendar
days of the grant of the order, and an order that the
defendant pay interest on the aforesaid interim payment at the legal
rate,
from a date 15 days after the date of the order to date of
payment.
[8]
In support of the relief sought, the applicant
alleged in the founding affidavit that the merits of the trial were
concluded in
her favour and in favour of her minor child and in that
regard, the respondent had been ordered to pay 100% of the proved or
agreed
damages. The order on the merits was granted on 8 October
2020.
[9]
The applicant complains, in the founding papers,
that although the matter had been ongoing since 2019 and the order on
merits was
granted on 8 October 2020, the issue of quantum of
damages, notwithstanding the resolution of the merits, remains
unresolved. According
to the applicant, when the question of quantum
was set down for hearing on 20 October 2022, the respondent, shortly
before the
commencement of the proceedings, sought to amend the plea
and introduce the ‘State Healthcare Defence’.
[10]
According to the applicant, given the dilatory
nature of the intended amendment, which was only sought at the
commencement of the
hearing, she instructed her legal team to object
to the application for amendment. The applicant averred that the
grounds for opposing
the proposed amendment included its lateness,
and the inherent irreparable harm to her minor child and the interest
of justice
regarding the right to a speedy trial and quick resolution
of disputes. Arising from that objection on the proposed amendment,
the respondent brought an application for leave to amend, accompanied
by another application for the separation of issues and items
of
damages which implicated, according to the respondent, the ‘State
Healthcare Defence’. The applicant opposed both
applications.
Sequel thereto, the parties were directed to file heads of argument
dealing with the issues raised in the two applications.
Both the
applicant and the respondent filed their heads of argument in respect
of those two applications on 4 October 2021 and
13 October 2021,
respectively.
[11]
The applicant alleged that prior to the unfolding
of the events referred to above, at some stage, the parties filed
comprehensive
joint minutes from various experts. The joint minutes
were incorporated by reference to these proceedings. According to the
joint
minutes by the experts, there is a high degree of unanimity and
agreement in respect of the quantum of damages, especially for the
minor child and in respect of what would constitute fair, reasonable
and appropriate damages.
[12]
The applicant avers that, at the hearing on 20
October 2022, she was ready to proceed with the determination of
quantum, and in
that regard, the applicant had arranged for the
availability of her quantum experts. However, the respondent, for the
reason of
the intended amendment, was not ready to proceed with the
trial on the merits.
[13]
Realising that the matter would not be proceeding,
the legal representatives engaged in various discussions regarding
those issues
that the respondent had belatedly sought to introduce
and as a result of those extensive communications, negotiations and
discussions,
agreements on a large portion of items of damages, were
agreed to and those agreements between the parties form part of the
reports
and joint minutes. The aforesaid agreements regarding fair,
reasonable and appropriate damages have been incorporated in these
proceedings by reference, and therefore they form part of the record
in this application.
[14]
According to the applicant, the aforesaid
agreements and common cause matters were referred for calculation by
the respondent and
recorded by Manala Actuaries, who then prepared a
report dated 10 September 2021 on the instructions of the
respondent’s
legal representatives. The applicant had alleged
that the report, which is an exhibit before Court, reflected the
agreed liability
of the respondent in the following sums for the
minor child–
(a)
General
damages
-
R22 000 000
(b)
Loss
of earnings
-
R1 175 947
(c)
Future
medicals
-
R16 626 216
Total
claim
-
R20 002 163
The
future medical costs were broken down as follows–
(c.1)
Occupational
therapy
-
R1 642 080
(c.2)
Physiotherapy
-
R1 285 522
(c.3)
Nursing
-
R6 782 732
(c.4)
Orthoptist
-
R1 501 778
(c.5)
Speech
therapy
-
R
890 931
(c.6)
Architecture
(described as instructed amount)
R1 400 000
(c.7)
Dietician
-
R
274 942
(c.8)
Dentist
-
R
253 547
(c.9)
Urology
-
R
221 184
(c.10)
Educational
psychology
-
R
345 632
(c.11)
Orthopaedic
Joint Minutes
-
R
322 775
(c.12)
Vehicle
(based on the trade-in value of R369 500 as instructed)
-
R1 705 094
Total
-
R16 626 216
[15]
According to the applicant, the amount does not
include the costs of protection of funds which is usually at 7.5% of
the capital
award.
[16]
The applicant further averred that except in
respect of architecture expenses in respect of which the respondent
had later sought
disputation and other few items referred to in
summary, the parties were generally in agreement about the damages.
On a further
report produced by Manana Actuaries, apparently on
further instruction from the respondent’s legal
representatives, there
was a further quantification of damages, and
that was embodied in a further report dated 12 September 2021.
[17]
According to the latter report, the total payment
in respect of the minor child is reasonably estimated at R15 168 105
(excluding the costs of protection of funds), and the future medical
costs summary breakdown, which is itemised and totals R11 792 158.
The applicant further avers that in terms of the agreements and
submissions regarding the quantum of damages, there is a high degree
of unanimity and agreement between the parties that the disputation
of damages is a sum less than the lower sum of R16 626 216
for medicals and R20 002 163 total should not be considered
as reasonable, or responsible, or constitutionally compliant
on the
part of the respondent. The applicant avers that the disputed items
in respect of caregiving costs and the other disputed
items, together
with costs of protection of funds, would need to be added.
[18]
The applicant contended that the marginalised and
compromised position of the minor child is comprehensively dealt with
in various
joint minutes and the reports to which the joint minute
relates. Accordingly, the applicant submitted that any delay or
interruption
in the finalisation of the matter and interruption or
delay in the provision of funds which can be administered to the
benefit
of the minor child for the provision of long overdue
necessary treatments and aids and the like, cannot and should not be
accepted.
[19]
In relation to the delays, the applicant submitted
that insofar as the application for leave to amend the pleadings is
concerned,
the respondent is
dominus
litus
and for some inexplicable
reasons, the respondent has not advanced the application towards the
disposition and that is prejudicial
to the minor child. The applicant
complains that the respondent has not even made payment of the agreed
damages. According to the
applicant, evidence was led before the
Presiding Judge in respect of certain issues and the matter is now
partly heard. The Presiding
Judge became unavailable in due course
and that resulted in the matter not proceeding towards finality. The
application for leave
to amend and the related application for
separation of certain issues, according to the applicant, has not
been heard. There is
a delay in the finalisation of the matter of
approximately a year and a half from the last day of postponement of
the trial and
that contributed to the immense prejudice that the
minor child is continuously suffering.
[20]
Regarding urgency, the applicant submitted that
consideration of circumstances pertaining to the minor child must be
taken into
account, the excessive delays in the finalisation of the
issues and the contents of the joint minutes which reflect the
condition
of the child and the urgent overdue needs of the minor
child. In this regard, the applicant contended that the best interest
of
the minor child should overshadow any objection regarding the
urgency of the matter.
[21]
In opposing the relief sought by the applicant,
the respondent filed an affidavit deposed by Ntethelelo Ziyanda
Paulette Khumalo,
an attorney of this Court employed by Norton Rose
Fulbright South Africa Incorporated. She testified that the applicant
filed a
defective application for the reason that when the matter was
served before Brooks J on 17 March 2023, he found that the
matter
was not certified as urgent because there was insufficient
urgency to warrant the hearing of the matter on a non-motion court
day.
According to Khumalo, Brooks J directed that the applicant could
seek a
rule nisi
with
interim relief in motion court with or without invoking Uniform rule
6(12) and upon due notice being given to the respondent.
Khumalo
contended that the effect of the directive by Brooks J is that the
application, in its present form, is unacceptable and,
therefore, all
the dates furnished by the applicant to the respondent should not
apply.
[22]
According to Khumalo, the question of an interim
payment had been dealt with in the respondent’s application of
7 September
2021, and the respondent’s application for
separation dated 27 September 2022 and the respondent had offered an
interim payment
to the applicant, which was refused. Khumalo then
averred on this basis that the issues should all be heard before
Nhlangulela
DJP, who is seized with the main trial as an
interlocutory application.
[23]
Regarding the certificate of urgency, Khumalo
averred that the applicant’s certificate of urgency is only
signed by the applicant’s
counsel in circumstances when a
directive was already issued on 17 March 2023 in which it was clearly
stated that there was insufficient
urgency to warrant approaching a
court on a non-motion court day. Khumalo contended that the matter
was not certified urgent as
it is required by the Uniform rules.
Khumalo proceeded to submit that the matter ought not to have been
set down by the applicant
for hearing on the unopposed roll of 4
April 2023 and that the applicant was not authorised to dispense with
the periods as provided
for in the ordinary Uniform rules of court
relating to the application. In a nutshell, Khumalo submitted that
the matter is not
urgent and thus should be struck off the roll.
[24]
On the merits, Khumalo has averred that it is
common cause that the matter regarding trial on quantum is part heard
by Nhlangulela
DJP, and that matter is set down for hearing on 26
June 2023. Accordingly, Khumalo refers to the joint letter, which was
signed
by both parties, and addressed to Nhlangulela DJP dated 1 July
2022. According to Khumalo, Nhlangulela DJP, following the hearing
of
the evidence on 22 November 2021, advised the parties that he
would wait for the judgment in the application which had
been brought
in the Makhanda High Court under case number 2091/2021 to which the
respondent is a party (
MEC for Finance
and Others v Legal Practice Council and Others
)
as the outcome of that case had the potential to render any judgment
in respect of the respondent’s application to amend
its plea,
appealable.
[25]
Khumalo contended that Nhlangulela DJP is aware
that the Makhanda High Court was due to determine whether the MEC for
Health in
the Eastern Cape would be allowed to plead that the quantum
of damages to be paid to the applicant be reduced by the medical
services
and equipment which the respondent can provide and that the
payment of damages in monetary form be subject to payment in
instalments.
According to Khumalo, the respondent did offer to pay an
amount of R500 000, as an interim payment, for the reasons of
the
envisaged delays in the trial for quantum. The offer of interim
payment, according to Khumalo, was not a proposal to settle any
dispute, and it was an offer to relieve prejudice suffered by the
applicant due to the delay in finalising the matter.
[26]
According to Khumalo, the respondent was not
appraised of the reasons why the applicant would refuse interim
payment, which would
alleviate the minor child’s medical
condition. Khumalo alleged that the offered interim payment of
R500 000 was rejected
without a rational basis. She further
alleged that the respondent had attempted to arrange for the
examination of the minor child
to commence some form of treatment for
the reasons of the continued alleged prejudice suffered by the minor
child. However, the
applicant refused to attend any hospital for the
purposes of determining the most suitable treatment for the minor
child.
[27]
Khumalo disputed that the respondent had caused
unreasonable delays in the finalisation of the applicant and her
minor child’s
claim. She suggested that the applicant is partly
to be blamed for the delays. Finally, Khumalo contended that the
applicant had
not taken the Court into its confidence regarding the
actual events which led to the launch of the respondent’s
application
to amend its plea and the later application for
separation of issues. Khumalo had averred that the respondent made
proposals to
the applicant, and the applicant rejected those
proposals with no valid or proper reasons. She suggested that the
offer of R500 000
was even increased to R1,5 million, and
the applicant still rejected the offer.
[28]
Khumalo contended that the issue of interim
payment should be dealt with by Nhlangulela DJP as an interlocutory
issue in the part-heard
matter.
Contentions of the
parties
[29]
Mr
Dugmore SC
,
counsel for the applicant, submitted that the respondent had delayed
the enforcement of the rights of the applicant’s minor
child to
the benefit of much-needed compensatory damages since the order on
the merits on 8 October 2020. He contended that the
Court, as the
upper guardian of all minors and the Bill of Rights in the
Constitution, provide the remedy for the protection of
the rights of
the minors. Mr
Dugmore
relied
on the provisions of the Children’s Act 38 of 2005, which,
inter alia
,
provides that the rights, that a child has in terms of the Act,
supplement the rights that a child has in terms of the Bill of
Rights
and that all organs of State in any sphere of government and all
officials, employees and representatives of an organ of
State must
respect, protect and promote the rights of children contained in the
Act.
[30]
Mr
Dugmore
submitted that the Court should take into account
that the present application involves the minor child’s
constitutionally
protected rights to prompt effective justice and the
partial or interim realisation of rights to be paid damages which are
not
readily or properly disputed, or which are due in terms of the
agreement between the parties’ legal representatives. The
gravamen of Mr
Dugmore
’
s
submission is that the respondent has avoided paying any damages to
the benefit of the minor child or the applicant personally
purportedly by reason of a desire to obtain an amendment impacting on
a limited number of issues relating to quantum. Mr
Dugmore
laid entirely, the delays in the
finalisation of the trial on quantum on the respondent, alleging that
the respondent has failed
to take any concrete or effective steps to
finalise the issue concerning amendment or to pay to the benefit of
the minor child
the agreed or appropriate damages on an interim
basis. Mr
Dugmore
pointed
out that the proposed offers of interim payment by the respondent
were woefully inadequate and simply imposed upon the applicant.
[31]
Regarding urgency, Mr
Dugmore
submitted that the respondent’s dispute of
urgency of the matter simply lacks merit for the reason that the
constitutionally
protected rights of the minor child and the facts of
the case reasonably require the grant of the relief on an urgent
basis. Mr
Dugmore
submitted
that the respondent has effectively obtained a delay of approximately
a year and a half in which the applications for
amendment and
separation have been held in abeyance. He did point out that the
finalisation of the trial on quantum is not imminent
as it largely
depends on the availability of the Presiding Judge and the readiness
of the respondent.
[32]
On the contrary, Mr
Van
der Linde SC
, counsel for the
respondent, contended that the trial would not be delayed as the
hearing of the application to amend the respondent’s
plea,
which will determine whether the values of the heads of damages are
to be paid to the applicant in cash or kind, has been
set down for
hearing on 26 June 2023. He submitted, in this regard, that it
would be inappropriate for this Court to hear
the application as the
decision of the Court would affect the issue of the quantum of
damages to be paid in monetary form to the
applicant and the date of
such payment would usurp the function of and interfere with the
discretion of Nhlangulela DJP, who
is seized with the matter. Mr
Van der Linde
conceded,
though, that the applicant is entitled to interim relief and
submitted that the applicant has failed to show good cause
that she
is entitled to the amount claimed. He questioned the amount of
R20 502 163 and R15 million and submitted
that these
amounts are not justified, and that the applicant has not led
evidence regarding the interim medical treatment and relief
that the
minor child requires immediately and on an interim basis.
[33]
Mr
Van
der Linde
contended
that the applicant refused to accept interim payments of R500 000
on 30 August 2021 and a later offer of R1,5 million
on 3 April 2023
and that such refusal to accept interim payment was not justified by
expert reports indicating the immediate and
urgent needs of the minor
child or why such amounts were insufficient. Mr
Van
der Linde
relied
on the authority of
V.D
obo M.D v Member of the Executive Council, Department of Health,
Eastern Cape,
[1]
where it was held–
“
Regarding
the other required services (apparently vouched for in medico-legal
reports already filed of record), the file in action
was not even
placed before the court, not that the court must wade through the
papers and glean this information for itself.
It is, therefore, unclear
what other services are necessary or at what cost. For this reason,
the court cannot even gain an impression
or perform its rough
assessment of which of these services can be provided “in kind”
in the short term; alternatively,
ought to be brought into the
reckoning for a lump sum payment.”
[34]
Mr
Van
der Linde
submitted
that despite the reduced standard of proof in a rule 34A
application, the applicant, in this case, has failed to
provide any
evidence which will support the amount claimed in respect of interim
payment and that the amount claimed is the entire
quantum of the
applicant’s claim in the main action which is to be held and
decided by the Presiding Judge. Mr
Van
der Linde
submitted
that the mere annexing of the joint minutes of the experts filed in
the main action does not constitute sufficient evidence
which would
allow the Court and the respondent to determine the immediate and
interim needs of the minor child. In this regard,
Mr
Van
der Linde
called
for the aid of authority in the matter of
V.D
obo M.D v the MEC
[2]
where it was stated–
“
Even
though the standard of proof is not as high when it comes to
assessing an interim need, the requirement stated in rule 34A
(2) can
hardly be met by just cobbling together random reports, or be
referring to reports in general. I would imagine that even
if the
plaintiff’s attorney has presented a proper opinion of what was
reasonably anticipated to be necessary in the next
few months, that
this would have assisted the exercise and might have sufficed.
Neither is it about simply asserting a percentage
of the overall
claim to be a reasonable proportion of what should be advanced on
account of what the plaintiff may ultimately be
awarded. The public
healthcare defence renders the base figure on which that calculation
is premised somewhat less exacting so
the detail of what is required
pending the trial ought to be engaged with a bit more extensively
than the plaintiff has.”
[35]
Mr
Van
der Linde
contended
that the amounts that have been agreed are merely values which are to
be used in the exercise of leading evidence regarding
the medical
treatment and equipment which can be provided to the applicant’s
minor child if it is successful in the application
to amend the plea,
in which circumstances the respondent would then lead the necessary
evidence regarding the medical treatment
and equipment to be
provided. Mr
Van
der Linde,
in
fortifying his point, again relied on the authority of
V.D
obo M.D v the MEC
[3]
where it was held–
“
The
plaintiff’s attorneys would do well to bear in mind in future
that a court in exercising its discretion is required in
sub-rule (4)
to apply its mind against an overall conspectus of what a plaintiff
is likely to recover upon trial considering any
contributory
negligence, set off or counterclaim. To this must be added the more
recent public healthcare defence that the defendant
is raising in
actions such as these.
In reckoning with the
probabilities that this “defence” may succeed at the
trial the plaintiff should be careful in
setting out what expenses
will be particularly justified and necessary and which of these in
her opinion cannot be provided in
kind and why she so contends. The
defendant ought in response to indicate where (in the plaintiff’s
locality) such services
can be accessed at a public healthcare
facility that meets the special needs of a child with cerebral palsy.
This ought not to
entail a full-on engagement with the public health
care defence but is a rough and ready assessment of what amount
should be advanced
in cash pending finalization of the quantum trial.
The public healthcare
defence will likely only impact to the extent that a court will have
to dwell on the question of what is likely
to be awarded as quantum
ultimately and which of the services and costs can be made available
to the plaintiff “in kind”,
so to speak. The objective of
a rule 34A application is to meet the child’s needs (that
in the long term will be represented
in the quantum award) in the
here and now so as to mitigate against any trial prejudice especially
if it is going to be a while
before the issue of what amount falls to
be paid in cash or in kind can be finally determined.”
[36]
Mr
Van der Linde
contended that any value in respect of the
applicant’s heads of damages, whether agreed or not, does not
constitute interim
relief and does not absolve the applicant from her
duty to furnish the court with the necessary evidence to support her
application
for interim relief. He, however, conceded that the Court
has the discretion to grant interim payment and that such discretion
is
to be exercised judiciously. Mr
Van
der Linde
submitted that the respondent
would be allowed to reduce the damages to be paid to a claimant in
medical negligence cases by the
medical services and equipment, which
the respondent can provide and further, whether any damages which
were to be paid in monetary
form could be made to the claimants in
such matters in instalments if such application for an amendment to
the respondent’s
plea to provide medical services and equipment
was granted.
[37]
I turn to consider the submissions of the parties.
Urgency
[38]
Uniform rule 6(12) provides–
“
(12)
(
a
)
In urgent applications the court or a judge may dispense with the
forms and service
provided for in these rules and may dispose of such
matter at such time and place in such manner and in accordance with
such procedure
(which shall as far as practicable be in terms of
these sub-rules) as it deems fit.
(
b
)
In every affidavit or petition filed in support of any application
under paragraph (
a
) of this subrule, the applicant must
set forth explicitly the circumstances which is averred render the
matter urgent and the reasons
why the applicant claims that applicant
could not be afforded substantial redress at a hearing in due
course.”
[39]
In
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Limited and Others
[4]
it was held–
“
The
import thereof is that the procedure set out in Rule 6(12) is not
there for the taking. An applicant has to set forth explicitly
the
circumstances which he avers render the matter urgent. More
importantly, the applicant must state the reasons why he claims
that
he cannot be afforded substantial readdress at a hearing in due
course. The question of whether a matter is sufficiently urgent
to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial readdress in the application
in due
course. The rules allow the court to come to the assistance of a
litigant because of the latter, were to wait for the normal
course
laid down by the rules, it will not obtain substantial readdress.
It is important to note
that the rules require absence of substantial redress. This is not
equivalent to irreparable harm that is
required before the granting
of an interim relief. It is something less. He may still obtain
redress in an application in due course,
but it may not be
substantial. Whether an applicant will not be able to obtain
substantial redress in any application in due course
will be
determined by the facts of each case. An applicant must make out his
case in this regard.”
[40]
Rule 6(12) confers a general judicial discretion
on a court to hear a matter urgently. The dominant consideration for
the court
in determining the issue of urgency should and must always
be a question of whether the applicant would be afforded substantial
redress at a hearing in due course. If the applicant cannot establish
prejudice in this sense, the application cannot be one of
urgency,
and however, if prejudice is established, other factors come into
consideration. The other factors include–
(a)
Whether the respondent can adequately present their case in the time
available between
the notice of the application to them and the
actual hearing;
(b)
Prejudice to the respondent and the administration of justice;
(c)
The strength of the case made by the applicant and any delay by the
applicant in asserting
his or her right; and lastly
(d)
The question of whether urgency is not self-created.
[41]
In cases involving minors, the court must have
regard to the Constitution and the Children’s Act and the
nature of the dispute
presented. Section 6(1) of the Children’s
Act provides–
“
(1)
The general principles set out in this section guide–
(
a
)
the implementation of all legislation applicable to children,
including this Act; and
(
b
)
all proceedings, actions and decisions by any organ of state in any
matter concerning
a child or children in general.”
[42]
Section 6(2) of the Children’s Act provides–
“
(2)
All proceedings, actions or decisions in a matter concerning a child
must–
(
a
)
respect, protect, promote and fulfil the child’s rights set out
in the Bill of
Rights, the best interests of the child standard set
out in section 7 and the rights and principles set out in this Act,
subject
to any lawful limitation;
(
b
)
respect the child’s inherent dignity;
(
c
)
treat the child fairly and equitably;
(d)
protect the child from unfair discrimination on any ground, including
on the grounds
of the health status or disability of the child or a
family member of the child;
(
e
)
recognise a child’s need for development and to engage in play
and other recreational
activities appropriate to the child’s
age; and
(
f
)
recognise a child’s disability and create an enabling
environment to respond
to the special needs that the child has.”
[43]
In this case, I have considered the fact that the
application concerns the minor child’s constitutionally
protected rights
to prompt and effective justice and interim
realisation of rights to be paid damages which are due in terms of
agreements between
the parties legal representatives, experts and the
reports which are readily available. I have considered the fact that
both parties
agree that the child should not suffer perpetual
prejudice and that the child is prejudiced by the delays in the trial
regarding
quantum. This Court also took into account that the
respondent was able to produce a substantive affidavit within the
time provided
in the notice of motion and before the actual hearing.
[44]
I also considered that Brooks J only determined in
the directive that the matter was not urgent and could not wait for
an ordinary
motion court day. Effectively, Brooks J agreed that the
matter could be enrolled on a motion court day, provided that notice
was
given to the respondent. I quote from the directives of Brooks J
issued on 17 March 2023–
“
.
. . Insufficient urgency is shown to warrant approaching a court on a
non-motion court day.”
[45]
Similarly, Brooks J concluded in the directive–
“
.
. . The applicant can seek a rule nisi with interim relief in any
motion court with or without invoking Rule 6(12) of the Uniform
Rules
of Court and upon due notice being given.”
[46]
Indeed, the applicant enrolled the matter for
hearing on Tuesday, 4 April 2023, which was an ordinary motion court
day. The applicant
needed no directive to enrol a matter on a motion
court day. The interpretation of Brooks J’s directive by the
respondent
has no merit. It bears mentioning that when the matter was
served before this Court on 27 April 2023, all papers were filed by
both parties. Substantive heads of argument were filed. It served
before this Court as an opposed application and the Court was
prepared to hear the parties on the strength of the fact that the
rights of a minor child were the subject of litigation. In terms
of
section 6(2)
(a)
,
a child’s rights must be respected, protected, promoted and
fulfilled as set out in the Bill of Rights, and the best interests
of
the child as set out in this Act, subject to any lawful limitation.
[47]
I must point out that Khumalo, in the answering
affidavit averred–
“
The
offer of an interim payment was not part of a proposal to settle any
dispute and was in order to relieve any prejudice suffered
by the
Applicant due to the delay in finalising the matter and therefore
correspondence in connection therewith cannot be “without
prejudice”.”
[48]
Once again, Khumalo made this concession about
prejudice–
“
The
Applicant’s attorneys responded to the letter on the same date
in a letter headed “without prejudice”. The
letter is
attached above marked “NK22”. I submit that the letter in
no way attempts to compromise what we have advised
that we intend to
do in our letter marked “NK21” above. I therefore
respectfully submit further that the labelling
of the letter “without
prejudice” by the Applicant’s attorney is an attempt to
avoid showing the Applicant’s
unwillingness to accept an
interim payment on what appears to be spurious ground.”
[49]
In my view, it is obvious that both parties agree
that the child was prejudiced by the delays occasioned as a result of
the prolonged
trial and that prejudice was continuous for as long as
the child did not get immediate redress to ameliorate the medical
condition
of the child. The child needed immediate redress, which she
was not getting because the legal representatives were unable to
agree
on the proportionate and appropriate amount to be paid on an
interim basis.
[50]
I was satisfied that the applicant, in her
founding affidavit, has set out explicitly the circumstances on which
she relies to render
the matter urgent and the reasons why she claims
that she cannot be afforded substantial relief at a hearing in due
course. There
are obvious delays in the trial regarding quantum.
There are disputed claims which need to be resolved. It was not
guaranteed that
the matter would proceed to finality on 26 June 2023
for various reasons, including the availability of the Presiding
Judge. Prejudice
to the child was apparent, and it was a common cause
between the parties; hence the respondent had made some offers,
though such
offers were rejected.
[51]
The
complaint of the respondent about the procedures adopted by the
applicant’s legal representatives did not detract from
the
urgency of the underlining issue pertaining to the rights of the
minor child. The respondent merely complains about the procedure
adopted by the applicant, not the substantive issue of the Rule 34A
application. Mr
Van
der Linde
conceded
the urgency of the matter, although submitting that the appropriate
court to hear the matter would have been the trial
judge, who is
seized with the matter regarding the quantum of damages. This
submission stands to be rejected for the reason that
this is a Rule
34A application. In
N.M
obo A.M v The Member of the Executive Council for Health, Eastern
Cape
[5]
Hartley J held–
“
The
urgency contemplated by the provisions of rule 6(12), read together
with par 12 of the Joint Rules of Practice, is to be distinguished
from the motivation required to justify the basis for an interim
payment as contemplated in rule 34A itself, although these reasons
may well overlap.”
[52]
I agree with Hartley J for a reason that rule 34A
provides a unique procedural remedy to a claimant who has suffered
damages in
the form of medical costs and loss of income arising from
physical disability. The enforcement of this remedy is entirely in
the
discretion of the court. The respondent seems to conflate the
Rule 6(12) and Rule 34A degrees of urgency and the extent of
grounds required for the urgency in each of the rules.
[53]
For those reasons, I found that the application
was urgent and that the non-compliance with the rules should be
condoned.
Whether or not the
applicant has met the requirements under rule 34A
[54]
Rule 34A deals with interim payments. The rule
provides–
“
1)
In an action for damages for personal injuries or the death of a
person, the plaintiff
may, at any time after the expiry of the period
for the delivery of the notice of intention to defend, apply to the
court for an
order requiring the defendant to make an interim payment
in respect of his claim for medical costs and loss of income arising
from
his physical disability or the death of a person.
(2)
Subject to the provisions of rule 6 the affidavit in support of the
application shall
contain the amount of damages claimed and the
grounds for the application, and all documentary proof or certified
copies thereof
on which the applicant relies shall accompany the
affidavit.
(3)
Notwithstanding the grant or refusal of an application for an interim
payment, further
such applications may be brought on good cause
shown.
(4)
If at the hearing of such an application the court is satisfied that-
(
a
)
the defendant against whom the order is sought has in writing
admitted liability for
the plaintiff’s damages; or
(
b
)
the plaintiff has obtained judgment against the respondent for
damages to be determined,
the court may, if it thinks fit but subject
to the provisions of subrule (5), order the respondent to make an
interim payment of
such amount as it thinks just, which amount shall
not exceed a reasonable proportion of the damages which in the
opinion of the
court are likely to be recovered by the plaintiff
taking into account any contributory negligence, set off or
counterclaim.
(5)
No order shall be made under subrule (4) unless it appears to the
court that the defendant
is insured in respect of the plaintiff’s
claim or that he has the means at his disposal to enable him to make
such a payment.
(6)
The amount of any interim payment ordered shall be paid in full to
the plaintiff unless
the court otherwise orders.
(7)
Where an application has been made under subrule (1), the court may
prescribe the
procedure for the further conduct of the action and in
particular may order the early trial thereof.
(8)
The fact that an order has been made under subrule (4) shall not be
pleaded and no
disclosure of that fact be made to the court at the
trial or at the hearing of questions or issues as to the quantum of
damages
until such questions or issues have been determined.
(9)
In an action where an interim payment or an order for an interim
payment has been
made, the action shall not be discontinued or the
claim withdrawn without the consent of the court.
(10)
If an order for an interim payment has been made or such payment has
been made, the court may,
in making a final order, or when granting
the plaintiff leave to discontinue his action or withdraw the claim
under subrule (9)
or at any stage of the proceedings on the
application of any party, make an order with respect to the interim
payment which the
court may consider just and the court may in
particular order that:
(
a
)
the plaintiff repay all or part of the interim payment;
(
b
)
the payment be varied or discharged;
(
c
)
a payment be made by any other defendant in respect of any part of
the interim payment
which the defendant, who made it, is entitled to
recover by way of contribution or indemnity or in respect of any
remedy or relief
relating to the plaintiff’s claim.
(11)
The provisions
of this rule shall apply
mutatis mutandis
to
any claim in reconvention.”
[55]
Rule
34 is intended to alleviate the hardship which a plaintiff may suffer
as a result of having to lay out or borrow funds pending
the
determination of a claim. An interim payment can be made only in
relation to claims in terms of the nature mentioned under
the
sub-rule. In
Karpakis
v Mutual & Federal Insurance Co Ltd
[6]
it was held that there is nothing in the rule which prohibits an
interim payment in respect of future medical costs and future
loss of
earnings. Sub-rule 4 provides that if at the hearing of such an
application the court is satisfied that
(a)
the
defendant against whom the order is sought, has in writing admitted
liability for the plaintiff’s damages; or
(b)
the
plaintiff has obtained a judgment against the respondent for damages
to be determined, the court may if it thinks fit but subject
to the
provisions of subrule (5), order the respondent to make an interim
payment of such amount as it thinks just, which amount
shall not
exceed a reasonable proportion of the damages which in the opinion of
the court are likely to be recovered by the plaintiff
taking into
account any contributory negligence, set off or counterclaim.
[56]
The applicant has met the requirements under rule
34A. On 8 October 2020, the merits of the claim were disposed by an
order awarding
the applicant 100% of proved damages, both in her
personal capacity and representative capacity. The outstanding issues
which have
delayed the finalisation of the matter is limited to
issues relating to an application for an amendment and the separation
of certain
disputed issues and heads. I agree with Mr
Dugmore
that the net result, when the whole case is
considered, is that the respondent has admitted liability of
R20 002 163,
according to the applicant, or an amount
between R18 million to R19 million according to the respondent.
[57]
I had regard to the reports, joint minutes and the
agreements reached by the parties regarding the quantum of damages.
There can
be no doubt that liability by the respondent is no longer a
serious issue other than the form of payment with regard to certain
heads of damages. In this regard, Mr
Van
der Linde
submitted, quite correctly,
that the application to amend the respondent’s plea, will
determine whether the values of the
heads of damages, are to be paid
to the applicant in cash or in kind. I disagree with the submission
that it would be inappropriate
for this Court to hear and determine
the application as the decision would affect the issue of the quantum
of damages to be paid
in monetary form to the applicant. Whatever
amount that would have been paid in the form of interim payment would
be deducted,
in terms of whatever value that would have been
determined, whether it was to be a payment in kind or cash.
[58]
The evidence is overwhelming about the medical
needs of the child, and such evidence is contained in joint minutes
of the experts
and the reports, which had been incorporated into this
application by reference. I accept the joint minutes of the experts
regarding
the child's needs. I, therefore, reject the suggestion that
the applicant has led no evidence regarding the interim medical
treatment
and the relief that the minor child requires immediately
and on an interim basis.
[59]
The applicant has explained the exigency and
objective for approaching the Court for an interim payment. It is
common cause that
she does not have the financial means at her
disposal to make provision for the needs of the child caused as a
result of her medical
condition. Although the respondent suggests
that there are some State interventions available to provide certain
medical treatments
required by the minor child, the parties have not
agreed on the adequacy or whether the suggested treatment would be
commensurate
with what the child needs. The parties are still locked
in dispute regarding public healthcare facilities. The belatedly
introduced
amendment has not been effected.
[60]
The delay in the finalisation of the trial on
quantum is a relevant factor, in my view, which justifies the
applicant’s entitlement
to an interim payment. The amendment
has been delayed for approximately a year and a half. The respondent
has placed no evidence
before Court to gainsay the allegations of the
applicant regarding her medical needs as set out in the joint minutes
and reports.
All that the respondent is contending about is the
pending amendment where it will seek to convince the Court to provide
medical
services and equipment and payments in instalments. The
respondent provided not even a shred of evidence regarding the
appropriate
amount to be awarded as an interim payment to the
applicant, although conceding that the child is prejudiced by the
delay. The
amounts offered by the respondent are simply thumb-sucked
and there is simply no basis for the proposed amounts. On the one
hand,
the applicant relies on the actuarial reports and schedules set
out therein, together with joint minutes and reports.
[61]
The joint minutes indicate that children with
cerebral palsy have pressing needs for specialist and
multi-disciplinary management
to ensure that they are able to develop
any possible abilities in spite of their severe neurological and
developmental impairment,
the complications are prevented in that the
quality of life and burden of care is optimal. For this purpose,
there is an urgent
need for access to payment of compensation so that
the necessary treatment can be provided.
[62]
Regarding the amount, the applicant had asked for
interim payment in the sum of R20 502 163 and
alternatively, R15 million.
In the assessment of the needs as
set out in the reports, and the schedule that was submitted to this
Court, the above amounts
are excessive and, in my opinion, would
amount to awarding damages which the trial court must determine. I
agree with the respondent
in this regard. In circumstances where the
amount that would be awarded is insufficient or exhausted before the
finalisation of
the trial, the applicant would be entitled to
approach the court and seek for further payment.
[63]
I had regard to the fact that the more or less
agreed liability is between R20 002 163 and between R18
million to R19
million. Based on these figures, I do consider that
R3,2 million would not exceed a reasonable proportion of the damages
which
the trial court is likely to award to the applicant and I am
satisfied that the amount of R3,2 million is just, fair and
reasonable
in the circumstances.
Findings
[64]
For the reasons set out above, I am satisfied that
the applicant has made out a case for the grant of a rule 34A interim
relief.
Accordingly, I would award an amount of R3,2 million to be
paid to the applicant, in her representative capacity within
30 calendar
days of this order. Both parties did not suggest the
creation of a trust and therefore, the amount would be paid to the
applicant’s
attorneys of record and to be kept in their trust
account and paid out when the need of the child arises. There should
be proper
records for the management of the amount.
Costs
[65]
I am satisfied that the applicant has been
substantially successful and costs should follow the result. However,
I reserve the costs
occasioned on 4 April 2023. The reason why I
reserve the costs of 4 April 2023 is that there were no facts placed
before Court
as to why the application was postponed on 4 April 2023.
The 4
th
of
April 2023 was on a Tuesday, which is an ordinary motion court day. I
was not appraised of the reasons why the matter could not
proceed on
that date. For the reasons that there were no sufficient facts placed
before me, I reserved those costs.
Order
[66]
It was for these reasons that the Court granted an
order in the following terms:
(1)
The applicant is hereby granted leave to proceed by way of urgency in
accordance with the provisions
of Rule 6(12)
(a)
and
(b)
and that this court hereby condones the non-compliance and departure
from the Uniform rules of court;
(2)
The respondent is ordered to make an interim payment to the
applicant, in her representative capacity,
in the sum of R3 200 000
(three million two hundred thousand rands) within 30 (thirty)
calendar days of this order;
(3)
The respondent shall pay interest at the prescribed legal rate should
the amount fixed for interim
payment remain unpaid within 30 (thirty)
calendar days of this order;
(4)
The reserved costs of 4 April 2023 shall stand over for determination
by the trial court when
the quantum of damages is finally determined;
(5)
The parties are granted leave to file additional submissions, should
they so wish, regarding the
reserved costs of 4 April 2023; and
(6)
The respondent is ordered to pay the costs of this application.
M NOTYESI
ACTING JUDGE OF THE
HIGH COURT,
EASTERN CAPE DIVISION
MTHATHA
Appearances
Counsel
for the Applicant/Plaintiff
Adv
Dugmore SC
Attorneys
for the Applicant/Plaintiff
M
Dayimani Incorporated
Mthatha
Counsel
for the Respondent/Defendant
Adv
Van Der Linde SC
Attorneys
for the Respondent/Defendant
Norton
Rose Fulbright South Africa Inc
c/o
Smith Tabata Attorneys
Mthatha
[1]
V.D
obo M.D v Member of Executive Council, Department of Health, Eastern
Cape
[2021]
ZAECBHC 10 paras 31-32.
[2]
Above
n 1 para 35.
[3]
Above
n 1 paras 42-44.
[4]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Limited and Others
[2011]
ZAGPJHC 196 paras 6-7.
[5]
N.M
obo A.M v The Member of the Executive Council for Health, Eastern
Cape
(Judgment
in respect of interlocutory application for interim payment) [2022]
ZAECBHC 47 para 25.
[6]
Karpakis
v Mutual & Federal Insurance Co Ltd
1991
(3) SCA 489 (O) at 501C.