Roodt and Others v Member of Executive Council for Health (823/2019) [2022] ZAFSHC 25 (10 February 2022)

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[2022] ZAFSHC 25
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Roodt and Others v Member of Executive Council for Health (823/2019) [2022] ZAFSHC 25 (10 February 2022)

IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
no: 823/2019
In
the matter between:
MAGDALENA
ADRIANA ROODT

1
ST
APPLICANT
JEANETTE
FAUCHE
2
ND
APPLICANT
GEORGE
ALBERT ROODT

3
RD
APPLICANT
LEA
ROODT
4
TH
APPLICANT
and
MEMBER
OF EXECUTIVE COUNCIL

RESPONDENT
FOR
HEALTH
CORAM:
C
NEKOSIE AJ
JUDGMENT BY:
C NEKOSIE AJ
HEARD ON:
27 JANUARY 2022
DELIVERED ON:
10 FEBRUARY 2022
[1]
This is an application for condonation for the late serving of a
notice in accordance
with section 3 of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 (“the
Act"). The applicants
are the plaintiffs in the main action
under the same case number. I shall refer to the parties as cited in
the application.
[2]
On 22 February 2017 GA Roodt, the deceased, husband of first
applicant and father to
the remainder of the applicants, fell off the
roof of his house. At the time he was sixty-six years old. He was
taken to Tokollo
Hospital Heilbron. After X-rays were taken he was
discharged on the same day. On 23 February 2017 he returned to the
hospital where
he passed on.
[3]
Initially the cause of death was noted as natural causes. The first
applicant insisted
that a post-mortem examination be held. The cause
of death was recorded as “unnatural cause: chest and abdominal
injuries due to
blunt force”. Consequently an inquest was held and
on 13 March 2018 the magistrate found that the death of the deceased
was not
brought about by any act or omission of any person.
[4]
The applicants gave notice in terms of
section 3
of the
Institution
of Legal Proceedings Against Certain Organs of State Act 40 of 2002
contemporaneously with the issuing of summons on 20 February 2019.
They claimed the following:
(a)
general and constitutional damages for loss suffering, loss of
amenities of life , emotional
shock and psychological trauma and
(b)
past and future medical and related expenses for medical
psychological and/or psychiatric
treatment to cope with the emotional
shock, mental and psychological suffering.
[5]
The respondent, in a special plea, alerted the plaintiff to the
lateness of the notice
on 19 February 2020. At that juncture the
applicants knew they had to apply for condonation. The application
for condonation was
brought on 31 May 2021.
[6]
Section 4
prescribes as follows:
“
(a)
If the organ of state relies on a creditor`s failure to serve 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.”
In
Minister
of Agriculture and Land Affairs v CJ Rance
[1]
it
was held that the requirements are conjunctive and must be
established by the applicant for condonation.
[7]
It is common cause that the claim has not prescribed as it was
brought within 3 years
three years from the passing of the deceased
on 23 February 2017. The remaining considerations are thus good cause
and unreasonable
prejudice.
[8]
I consider the aspect unreasonable prejudice first. The respondent
submits that its
unreasonable prejudice lies in the fact that huge
legal costs will be incurred and the applicants, by their own
admission will not
be able to pay the costs in the event they are
unsuccessful. The submission is correct to the extent that the
inability to recoup
legal cost from an unsuccessful party constitute
prejudice. The question is however whether said prejudice is
unreasonable. In
Madinda
v Minister of Safety and Security
[2]
the Appeal court held:
“
The
approach to the existence of unreasonable prejudice (not simply any
prejudice, an aspect which the judgement of the court a quo
blurs)
requires a common sense analysis of the fact of the facts, bearing in
mind that whether the ground of prejudice exist often
lies peculiarly
within the knowledge of the respondent. Although the onus is on the
applicant to bring the application within the
terms of the statute, a
court should be slow to assume prejudice for which for which the
respondent itself does not lay a basis”
[9]
Other than costs, the respondent did not put forward any other
prejudice that may be
suffered. No indication is given on the extent
to which the respondent`s case has been hampered by the delay. The
submission that
it is better to save costs now before because the
applicants, by their own admission will not be able to pay the costs
later does
not hold water. Costs is an inevitable consequence of
litigation with mechanism in place for recouping costs from any
unsuccessful
party. There may well be instances where costs is a more
prominent consideration but in these particular circumstance it is
certainly
not such that the court can, on the strength thereof alone,
be moved to conclude that it constitutes unreasonable prejudice.
[10]
In considering whether the applicant has shown good cause I am
cognisant of the fact the standard of
proof is the overall impression
made on the court which brings a fair mind to the facts set up by the
parties
[3]
.
In
Madinda
supra
[4]
it is stated:
“
The
second requirement is a variant of one well known in cases
of procedural non-compliance. See
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996
(1) SA 215 (W)
at
227I - 228F and the cases there cited. 'Good cause' looks at all
those factors which bear on the fairness of granting the relief
as
between the parties and as affecting the proper administration of
justice. In any given factual complex it may be that only
some
of many such possible factors become relevant. These may include
prospects of success in the proposed action, the reasons for
the
delay, the sufficiency of the explanation offered, the bona fides of
the applicant, and any contribution by other persons or
parties to
the delay and the applicant's responsibility therefor.”
[11]
In accounting for their non-compliance prior to giving late notice,
the applicants aver that they were
not aware that notice must be
given within 6 months. Thus claiming ignorance of the law. The first
applicant`s conduct immediately
after the death of her husband
attests to a person that is more informed than she would have the
court believe. When she was informed
that her husband died of natural
causes, she insisted that a post mortem be held which revealed an
unnatural cause of death leading
to an inquest being held. This
conduct, at the very least, points to the fact that she suspected
fowl play and knew what was required
for it to be investigated.
[12]
The façade of ignorance is further belied by the fact that the first
applicant confirms her conscious
decision not to initiate the civil
proceeding until the outcome of the inquest is known. This is also
indicative of her hope that
the inquest will strengthen their claim.
Ironically, when the finding of the inquest was that no action or
omission by any person
caused the death of the deceased, she none the
less instituted action. Begging the question why she waited in the
first place if
the outcome of the inquest was inconsequential.
[13]
The applicant asserts that she and the other applicants were
unfamiliar with the intricacies of the law
and believed that the
outcome of the inquest meant that they were precluded from launching
civil action. They nonetheless made enquiries
and found that a number
of legal representatives were unwilling to assist on contingency. She
does not take the court into confidence
in respect of how many legal
representatives were consulted nor whether they advised on the
prerequisites for instituting action.
The court is left to speculate
what transpired between her and the legal representatives that she
consulted.
[14]
Neither first applicant nor the other applicants takes the court into
their confidence in regards their
alleged lack of funds. No attempt
is made to set forth their respective financial position to enlighten
the court on their circumstance
that resulted in their inability to
procure legal representation. In
Bayat v
MEC, Department of Health - Kwazulu-Natal Public Health and Social
Development and Others
[5]
the court reiterated the need for detailed disclosure of financial
position by an applicant when relying on the lack of funds.
[15]
The fifteen month delay between being advised that condonation would
be required and the actual bringing
of the application is
superficially attributed to the Covid-19 pandemic. The applicants
submit that it was difficult for all of them
to sign the necessary
document. While the pandemic had a retarding effect on litigation,
courts should be circumspect to simply accept,
what has become an
almost rudimentary excuse for the tardiness by litigants, blaming the
pandemic for delay. The explanation given
by the applicants do not
account for the whole period of delay. In fact no explanation is
given for what was done after the level
5 lockdown was lifted when
court were back I full operation.
[16]
Adv Groenewald referred me to
Sogoni
v The Member of the Executive Council for Health, Eastern Cape
Province
[6]
and
Shannon
v Masilonyana Local Municipality
[7]
in support of his contention that the applicant`s explanation for
failing to give notice was sufficient. Indeed
Sogoni
provides a thorough exposition of the law pertaining to condonation
which I do not deem necessary to repeat herein. In particular
I was
directed to the fact that in
Sogoni
the plaintiff was an unsophisticated rural person who was informed by
the medical staff that his wife passed on because of excessive
bleeding after delivery of their twin babies. The court found that he
could not have realised that he had a claim at that point and
therefore accepted that he only came to know of the existence of the
claim when he was informed of the possibility thereof by a relative
a
year later.
[17]
The matter at hand is distinguishable as the applicants asserted
their right to have a post-mortem performed
on the deceased from the
outset. Thus, they were aware that they may have a claim even then.
Furthermore the applicants elected to
wait more than a year for the
outcome of the inquest to presumably assess their prospects before
seeking assistance to institute
their action.
[18]
Shannon
supra
is distinguishable from the
present matter. There the plaintiff was hampered by the failure of
the SAPS to provide information to
his attorneys.  The attorney
attempted to obtain the information shortly after cause of action
arose, within six months. The
court found that the overall impression
made by the undisputed facts before it, was such that it was
satisfied that the applicants
were entitled to have their case tried
in a court of law.
[19]
It was argued on the strength of this judgment that delays caused by
the legal representatives in bringing
the application for condonation
is inconsequential and cannot be held against the plaintiff. On
proper reading of the judgment it
is clear that the court based its
finding on the undisputed facts pertaining to the processing of the
application and did not intend
it to be of general application where
condonation is concerned. The interest of justice dictated that the
application be granted
in
Shannon.
[20]
The prospects of success is fleetingly touched upon by the
applicants. There is a scant reference to
a medical practitioner who
opined that the deceased death was due to the negligence on the part
of the staff of the hospital. This
opinion was obtained at the
eleventh hour more than a year after summons was issued. Converse to
this opinion are the opinions of
several medical practitioner and the
outcome of judicial proceedings absenting any negligence on the part
of the hospital staff.
[21]
I am mindful that it is not for this court to make a determination on
the merits of the claim. However,
when the prospects of success are
as glaringly dismal as in this matter, the pendulum of the interest
of justice swings in favour
of the respondent.
[22]
On consideration of all the aforementioned the overall impression
gained from the circumstances of this
matter is such that the
applicants failed to show good cause for giving notice out of time
and their delay to bring the application
for condonation. In the
premise the application stands to be dismissed.
ORDERS
1.
The application for condonation is
dismissed.
2.
The applicant to pay the cost of the
application on a party and party scale.
CNEKOSIE,
AJ
For the
Plaintiff:

Adv WJ GROENEWALD
Instructed by
Collins Attorneys
PRETORIA
c/o Wynand Jansen Attorneys
BLOEMFONTEIN
For the Defendant:

Adv BS MENE SC
Instructed
by:
THE STATE ATTORNEY
FEDSURE BUILDING
BLOEMFONTEIN
[1]
2010 (4) SA 109
(SCA) para 10
[2]
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) p
ara
21
[3]
p316
para 8
[4]
P316 p
ara
10
[5]
Bayat v MEC, Department of Health - Kwazulu-Natal Public
Health and Social Development and Others (D 2278/18) [2021] ZALCD
54
(4 August 2021) at para 19
[6]
2021 JDR 0730 (ECD)
[7]
2018 JDR 1131 (FB)