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[2022] ZAECBHC 21
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NM obo LNM v MEC for Health, Eastern Cape Provincial Government (315/2018) [2022] ZAECBHC 21 (26 July 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO. 315/2018
In
the matter between:
N[....]1
M[....] obo
L[....]
N[....]2 M[....]
Applicant
and
MEC
FOR HEALTH, EASTERN CAPE
PROVINCIAL
GOVERNMENT
Respondent
JUDGMENT
LAING
J
[1]
This is an application for condonation of the applicant’s
non-compliance
with sections 3(1) and (2) of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 (‘the
Act’).
The applicant has instituted proceedings as the mother
of a boy who has spastic quadriplegia.
Background
facts
[2]
In her founding affidavit, the applicant states that she had an
uneventful
pregnancy and obtained antenatal care at a community
clinic. She went into labour on 17 June 2014 and was admitted to the
Butterworth
Hospital. She alleges that she was subjected to
sub-standard maternal and foetal monitoring and labour management
before giving
birth to her son, L[....], during the course of 18 June
2014. The medical staff at Butterworth Hospital failed to detect,
timeously,
the onset of foetal distress and to take appropriate steps
to deal with same, resulting in intrapartum birth asphyxia and
consequent
brain damage. The applicant avers that her son’s
condition was caused by negligence on the part of the medical staff
in question.
[3]
Subsequently, in 2017, the applicant consulted with a medical
specialist,
who examined L[....] and explained his injuries to her.
She goes on to aver that it was only after she had read the
specialist’s
report and after it was discussed with her by her
attorneys that she acquired knowledge of the facts giving rise to the
claim,
as well as the identity of the debtor. The applicant points
out that she has brought the claim in her representative capacity and
that prescription does not begin to run until L[....] attains the age
of majority.
[4]
The applicant alleges that a letter of demand was sent within six
months
of the date upon which the debt became due.
[5]
The respondent opposes the application for condonation. To that
effect,
the respondent argues that the applicant failed to take the
court into her confidence by making a full disclosure of all relevant
details, including the dates of consultations with the specialist and
her attorneys. Moreover, the specialist’s report was
never
attached to the applicant’s founding affidavit. In the absence
of such information, asserts the respondent, the court
cannot make a
proper determination for purposes of granting or refusing
condonation.
[6]
Consequently, the applicant seeks leave to file a supplementary
affidavit,
dealing with the shortcomings that the respondent has
highlighted. She states that at the time that she filed her founding
affidavit
she was not aware that the additional information was
required.
[7]
In her
supplementary affidavit, the applicant alleges that L[....]’s
achievement of various growth milestones had been delayed.
However,
the applicant failed to acknowledge or appreciate the situation
properly and attributes this to her youth. She had only
been 18 years
old at the time of her son’s birth. When she took him to a
clinic on 4 August 2016, the staff confirmed that
‘something
was seriously wrong’, prompting her to approach attorneys on 8
August 2016 for purposes of obtaining advice
about whether there was
a cause of action; at that stage, the applicant was still uncertain
about whether she could claim damages
as a result of the negligence
of the respondent’s medical staff. Her attorneys attempted to
obtain copies of the hospital
records and advised her to approach a
medical specialist in the interim. The applicant was only able to
obtain sufficient funds
in April 2017, allowing her attorneys to
secure an appointment with an obstetrician and gynaecologist, Dr
Burgin, on 27 June 2017.
He (or she)
[1]
examined L[....] and provided the applicant with his (or her) report
on the same day. It was on this date, alleges the applicant,
that she
became aware that she had a claim.
[8]
Subsequently, the applicant’s attorneys served on the
respondent,
on 27 November 2017, an application brought in terms of
the Promotion of Access to Information Act 2 of 2000 (‘PAIA’).
The applicant does not indicate what became of the application, other
than to aver that her attorneys had still not obtained copies
of the
hospital records by 27 February 2018, which is when she instructed
them to issue the letter of demand. As a result of an
oversight on
the part of the applicant’s attorneys, the letter was only
posted on 13 March 2018. The applicant observes,
too, that the letter
was addressed to the respondent and not the Head of Department, as
required under the
State Liability Act 20 of 1957
, and that her
summons was issued prematurely. She seeks condonation in this regard.
Issues
to be decided
[9]
The issues to be decided by the court are centred on the requirements
of section 3 of the Act. For ease of reference, the contents are set
out in full below:
3. Notice of intended
legal proceedings to be given to organ of state.
—(1) No
legal proceedings for the recovery of a debt may be instituted
against an organ of state unless—
(a)
the creditor has given the organ of state in question notice in
writing of his or her or
its intention to institute the legal
proceedings in question; or
(b)
The organ of state in question has consented in writing to the
institution of legal proceedings—
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set out
in subsection (2).
(2) A notice must—
(a) within six months
from the date on which the debt became due, be served on the organ of
state in accordance with section 4(1);
and
(b) briefly set out—
(i) the facts giving rise
to the debt; and
(ii) such particulars of
such debt as are within the knowledge of the creditor.
(3) For purposes of
subsection 2(a)—
(a) a debt may not be
regarded as being due until the creditor has knowledge of the
identity of the organ of state and of the facts
giving rise to the
debt, but a creditor must be regarded as having acquired such
knowledge as soon as he or she or it could have
acquired it by
exercising reasonable care, unless the organ of state wilfully
prevented him or her or it from acquiring such knowledge;
and
(b) a debt referred to in
section 2(2)(a), must be regarded as having become due on the fixed
date.
(4)
(a) If an organ of state relies on a creditor’s failure to
serve a notice in terms of subsection
2(a), the creditor may apply to
a court having jurisdiction for condonation of such failure.
(b) The court may grant
an application referred to in paragraph (a) if it is satisfied that—
(i)
the debt has not been extinguished by prescription;
(ii)
good cause exists for the failure by the creditor; and
(iii)
the organ of state was not unreasonably prejudiced by the failure.
(c)
an application is granted in terms of paragraph (b), the court may
grant leave to
institute the legal proceedings in question, on such
conditions regarding notice to the organ of state as the court may
deem appropriate.
[10]
The
applicant has brought her application in terms of section 3(4)(a).
Before the court can decide whether to grant the application,
however, it is necessary to determine precisely when ‘the debt
became due’,
[2]
after
which the court can consider the requirements of section 3(4)(b).
Admissibility
of supplementary affidavit
[11]
At this stage, it is necessary to pause briefly so as to deal with
the admissibility of
the applicant’s supplementary affidavit.
The application was brought on 22 July 2019, the answering papers
were delivered
on or about 21 August 2019, the supplementary
affidavit was delivered on or about 8 June 2021. The respondent
correctly contends
that the last-mentioned was delivered
exceptionally late. The applicant has nevertheless sought leave to
file same. In terms of
rule 6(5)(e), the court has a discretion to
permit the filing of further affidavits.
[12]
Here, the founding affidavit was sparse and insufficient on its own
to allow the court
to make the determinations contemplated under
section 3(4)(b) of the Act. The applicant’s claim pertains to
the condition
of her son; needless to say, the quantum of the claim
is substantial and the outcome of the main action will have a
profound effect
on both the life of L[....] and that of his mother.
The supplementary affidavit places a more comprehensive set of facts
before
the court, allowing the necessary determinations to be made.
[13]
The respondent has had ample time within which to deal with same but
has elected not to
file any further affidavit in response; it could
have done so. It cannot be argued that the respondent has suffered
any real prejudice
and the court exercises its discretion to permit
the filing of the supplementary affidavit in question.
When
the debt became due
[14]
Returning to the question of when ‘the debt became due’,
the respondent argues
that the applicant had knowledge of the
identity of the organ of state and the facts that gave rise to the
debt when she gave birth
to her son on 18 June 2014, rather than the
date upon which she received the report from Dr Burgin, 27 June 2017.
[15]
The question as to when a debt becomes due, within the context of the
Prescription Act 68 of 1969
, was considered in
Truter and another
v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA), where the court held, at [16],
that
‘
A debt is due…
when the creditor acquires a complete cause of action for the
recovery of the debt, that is, when the entire
set of facts which the
creditor must prove in order to succeed with his or her claim against
the debtor is in place, or, in other
words, when everything has
happened which would entitle the creditor to institute action and to
pursue his or her claim.’
[16]
The court went on to quote the learned writer, Loubser, at [17]:
‘
A cause of action
means the combination of facts that are material for the plaintiff to
prove in order to succeed with his action.
Such facts must enable a
court to arrive at certain legal conclusions regarding unlawfulness
and fault, the constituent elements
of a delictual cause of action
being a combination of factual and legal conclusions, namely a
causative fact, harm, unlawfulness
and culpability or fault.’
[3]
[17]
At [19], the court observed that
‘”
Cause of
action” for the purposes of prescription thus means…
every fact which it would be necessary for the plaintiff
to prove, if
traversed, in order to support his right to the judgment of the
Court. It does not comprise every piece of evidence
which is
necessary to prove each fact, but every fact which is necessary to be
proved.’
[4]
[18]
The subject
was addressed shortly afterwards, again, in the decision of
Minister
of Finance and others v Gore NO
2007 (1) SA 111
(SCA), where the court held that mere opinion or
supposition was not enough to trigger the running of prescriptive
time; there
had to be justified, true belief.
[5]
The court remarked that:
‘
It follows that
belief that is without apparent warrant is not knowledge; nor is
assertion and unjustified suspicion, however passionately
harboured;
still less is vehemently controverted allegation or subjective
conviction.’
[6]
[19]
In the
present matter, the applicant’s cause of action is founded on
the principles of delict. These require sufficient allegations
of
fact from which a court may find that the necessary elements of
delict are present to justify the relief sought, viz. harm caused
to
the plaintiff, conduct by the defendant which is wrongful, a causal
connection between such conduct and the harm suffered, and
fault or
blameworthiness on the part of the defendant.
[7]
The nature of claims based on medical negligence is notoriously
complex. More specifically, a plaintiff such as the applicant,
here,
would need to have at her disposal an adequate set of facts, taken
from the circumstances leading up to and present at the
time of the
birth of her son, from which,
inter
alia
,
wrongful conduct, causality and fault could be established.
[20]
The Constitutional Court encapsulated the challenge that faces a
plaintiff in the matter
of
Links v Member of the Executive
Council, Department of Health, Northern Cape Province
2016 (5)
BCLR 656
(CC), where Zondo J (as he was then) held, at [45], that
‘
In a claim for
delictual liability based on the Aquilian action, negligence and
causation are essential elements of the cause of
action. Negligence
and, as this Court has held, causation have both factual and legal
elements. Until the applicant had knowledge
of facts that would have
led him to think that possibly there had been negligence and that
this had caused his disability, he lacked
knowledge of the necessary
facts contemplated in
section 12(3).
’
[8]
[21]
The applicant did not have copies of the hospital records at any time
prior to receipt
of the report from Dr Burgin. She was not in
possession of any evidence with regard to sub-standard maternal and
foetal monitoring
and labour management during her stay in hospital.
This much is not disputed. Whereas her visit to the clinic confirmed
that ‘something
was seriously wrong’ with L[....], she,
as a layperson, would have remained none the wiser about the details
and possible
causes thereof. It cannot be said that she had a
complete set of facts upon which to establish a cause of action. At
best, she
held a mere opinion or supposition that the respondent’s
staff were responsible for the condition of her son.
[22]
The examination and report of Dr Burgin changed the picture. From the
information supplied
by the applicant, Dr Burgin commented as
follows:
‘
It appears that
the monitoring of the labour was substandard. The patient states she
was not seen once during the night of 17 June
– 18 June 2014.
The membranes ruptured at 07h00, and the second stage may have been
prolonged. In the absence of any records
it is difficult to comment
about this.
However it is certain
that the child has cerebral palsy probably due to anoxia in late
labour which caused cerebral damage.’
[23]
The conclusions drawn by Dr Burgin and the advice received from her
attorneys would have
been sufficient to convert the applicant’s
mere opinion or supposition to a justified and true belief that the
conduct of
the respondent’s staff was wrongful, probably the
cause of the harm suffered by L[....], and gave rise to fault or
blameworthiness.
[24]
It could possibly be contended that, even at that stage, the
applicant lacked a complete
set of facts to institute proceedings in
the absence of copies of the hospital records. However, the applicant
appears to accept
that ‘the debt became due’ on 27 June
2017 and the court will proceed on that basis for purposes of
applying the provisions
of
section 3(2)(a)
of the Act, meaning that
notice must have been given by no later than 26 December 2017.
[25]
The
applicant alleges that the notice was sent by registered post on 13
March 2018.
[9]
Consequently, the
court is required to decide whether there is a basis upon which to
grant the application in circumstances where
the notice was slightly
less than three months out of time. To that effect, it is necessary
to consider the requirements of section
3(4)(b) of the Act.
The
requirements of section 3(4)(b)
[26]
A court may
grant an application for condonation if it is satisfied that the
three requirements listed at sub-sections (i), (ii)
and (iii) have
been met. The meaning of this does not encompass proof on a balance
of probabilities but rather the overall impression
made on the court.
See
Madinda
v Minister of Safety and Security
[2008] 3 All SA 143 (SCA).
[10]
[27]
The reason for notification to be given to an organ of state prior to
the institution of
proceedings is described in
Mohlomi v Minister
of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC), where the court held, at [9],
that
‘
With its extensive
activities and large staff which tends to shift it needs the
opportunity to investigate claims laid against it,
to consider them
responsibly and to decide, before getting embroiled in litigation at
public expense, whether it ought to accept,
reject or endeavour to
settle them.’
[28]
It is common cause that the debt has not been extinguished by
prescription. The applicant’s
son is still a minor. The issues
that must be decided are, therefore, whether good cause exists for
why the applicant failed to
give notice in terms of section 2(a) of
the Act, and whether the respondent was not unreasonably prejudiced
by such failure. These
will be examined in turn.
Good
cause
[29]
As a starting point, the decision in
Minister of Agriculture and
Land Affairs v CJ Rance (Pty) Ltd
[2010] 3 All SA 537
(SCA)
remains pertinent. Here, Majiedt AJA held as follows:
‘
[35] In
general terms, the interests of justice play an important role in
condonation applications. An applicant for condonation
is required to
set out fully the explanation for the delay; the explanation must
cover the entire period of the delay and must
be reasonable.’
[36] “Good
cause” within the meaning contained in section 3(4)(b)(ii) has
not been defined, but may include
a number of factors which will vary
from case to case on differing facts. Schreiner JA in dealing with
the meaning of “good
cause” in relation to an application
for rescission, described it thus in Silber v Ozen Wholesalers (Pty)
Ltd:
[11]
“
The meaning of
‘good cause’ in the present sub-rule, like that of the
practically synonymous expression ‘sufficient
cause’
which was considered by this Court in
Cairn’s
Executor’s v Gaarn
1912 AD 181
, should not lightly be made the subject of further
definition. For to do so may inconveniently interfere with the
application of
the provision to cases not at present in
contemplation. There are many decisions in which the same or similar
expressions have
been applied in the granting or refusal of different
kinds of procedural relief. It is enough for present purposes to say
that
the defendant must at least furnish an explanation of his
default sufficiently full to enable the court to understand how it
really
came about, and to assess his conduct and motives.”
[12]
[37] The
prospects of success of the intended claim play a significant
role-“strong merits may mitigate fault;
no merits may render
mitigation pointless.”
[13]
The court must be placed in a position to make an assessment on the
merits in order to balance that factor with the cause of the
delay as
explained by the applicant. A paucity of detail on the merits will
exacerbate matters for a creditor who has failed to
fully explain the
cause of the delay. An applicant thus acts at his own peril when a
court is left in the dark on the merits of
an intended action, e.g.
where an expert report central to the applicant’s envisaged
claim is omitted from the condonation
papers.’
[30]
It is clear from the case law that has developed in relation to
section 3(4)(b)(ii) that
an applicant who seeks condonation must, for
purposes of demonstrating ‘good cause’, play open cards
with the court.
There must be no suggestion that the applicant is
concealing certain information that would raise the suspicion that no
good cause
exists. Ultimately, however, each case depends on its own
facts. See
Premier of the Western Cape Provincial Government NO v
BL
[2012] 1 All SA 465
(SCA), at [17].
[31]
The deficiencies it the applicant’s founding affidavit were
largely ameliorated in
the supplementary affidavit, where a more
comprehensive account for the delay was provided. Nevertheless, an
honest assessment
of the applicant’s explanation would reveal
gaps in what happened from when Dr Burgin provided his (or her)
report on 27
June 2017 until the dispatch of the notice on 13 March
2018. There appears to have been an attempt to compel the respondent
to
provide access to the hospital records by way of the institution
of PAIA proceedings on 27 November 2017 and it is clear that,
certainly by 27 February 2018, the attorneys had a mandate to pursue
the action on behalf of the applicant. Whereas there is no
suggestion
at all that the applicant has concealed vital information from the
court or that the delay was not
bona fide
, the exact reasons
for why notice was not provided by 26 December 2017 are not entirely
apparent from the applicant’s papers.
[32]
The prospects of success with regard to the main claim must also be
taken into consideration.
See
Madinda
, at [10]. It has already
been observed that the nature of medical negligence claims is
notoriously complex. Here, the court has
no access to copies of the
hospital records; the only expert report made available is that of Dr
Burgin, which was allegedly compiled
purely on the basis of the
applicant’s history. In the circumstances, it is impossible to
ascertain the prospects of success;
there may be merits to the
applicant’s claim, there may not be.
[33]
What can be
said, however, is that from as far back as 8 August 2016 the matter
lay in the hands of the applicant’s attorneys.
[14]
The applicant was 20 years old at the time that she first sought
legal advice. As a layperson, residing in a rural area,
[15]
the applicant was clearly faced with the difficulties usually posed
to a litigant in her position. Issues of geographical remoteness,
the
applicant’s youthfulness, funding constraints, a lack of
sufficient medical and legal knowledge and oversights on the
part of
her attorneys
[16]
would have
been genuine hurdles to the applicant’s successful compliance
with the provisions of the Act. Ultimately, despite
shortcomings in
the applicant’s explanation for the delay and the uncertainties
in relation to the prospects of success,
the interests of justice
require the court not to exclude good cause for her failure to have
given notice by 26 December 2017.
[34]
That, however, is not the end of the enquiry. It is still necessary
to decide whether the
respondent was not unreasonably prejudiced.
Prejudice
[35]
In
Madinda
, Heher JA held, at [12], that
‘…
There are
two main elements at play in section 4(b), viz. the subject’s
right to have the merits of his case tried by a court
of law and the
right of an organ of state not to be unduly prejudiced by delay
beyond the statutorily prescribed limit for the
giving of notice.
Sub-paragraph (iii) calls for the court to be satisfied as to the
latter. Logically, sub-paragraph (ii) is directed,
at least in part,
to whether the subject should be denied a trial on the merits…’
[36]
The court drew a clear distinction between the enquiries, remarking,
at [15], that the
separate requirements of good cause and absence of
unreasonable prejudice may have been intended
‘
to emphasise the
need to give due weight to both the individual’s right of
access to justice and the protection of state interest
in receiving
timeous and adequate notice.’
[37]
In the present matter, the respondent has not placed any evidence of
unreasonable prejudice
before the court. No mention is made to that
effect in the answering papers.
[38]
The
respondent did, notwithstanding, take the point in argument,
asserting that the notice was delivered to the respondent directly
and not to the Head of Department, as required under section 4(1)(a)
of the Act.
[17]
This was
admitted by the applicant in her supplementary affidavit.
[18]
The respondent argued that where notice is given to the incorrect
organ of state, the purpose of prior notification is defeated
and
clear prejudice results. The decision in
Mfundisi
Gcam-Gcam v Minister of Safety and Security
(Case No. 187/11, Eastern Cape High Court, Mthatha, unreported)
[19]
was cited as authority.
[39]
It cannot be contended that notice was sent to the incorrect organ of
state. Notice was
sent to the Department of Health, which is
represented by the respondent and which is the employer of the
medical staff allegedly
liable for the damages claimed by the
applicant.
[40]
Furthermore,
the decision in
Gcam-Gcam
concerned a situation where the defendant had raised, in a special
plea, the plaintiff’s non-compliance with the Act. Pleadings
closed and it was only when the matter had reached trial stage that
the issue came for determination by way of a stated case, in
terms of
which the plaintiff argued that there had been substantial compliance
with the relevant provisions. The court,
per
Mbenenge ADJP (as he was then), held that it was imperative for the
plaintiff to have served notice on the Head of Department,
whose
responsibilities include the management of liabilities.
[20]
However, the court went on to observe, at [20], that
‘…
the
question whether or not the appropriate functionary has been served
ought merely to hinge on the facts of each case, the enquiry
being
purely factual and requiring no exercise of a discretion;
considerations of fairness and prejudice should not come into play
during this enquiry. Only when condonation is sought in terms of
section 3(4)(b) should a discretion, hinging on,
inter alia
,
whether the organ of state was not unreasonably prejudiced by the
failure to serve the notice on the proper functionary, be exercised.’
[41]
The court,
in other words, simply made a factual finding with regard to proper
service. The plaintiff was barred from proceeding
to trial without
first having obtained condonation.
[21]
[42]
The situation here is distinguishable from the facts in
Gcam-Gcam
.
Whereas the applicant has, by her own admission, not complied with
the requirements of section 2(a), read with section 4(1), of
the Act,
she has indeed sought condonation from this court. No application to
that effect was before the court in
Gcam-Gcam
. The case is of
no assistance to the respondent.
[43]
The only other point taken by the respondent in this regard is that
the applicant’s
tardiness in prosecuting the application for
condonation caused further prejudice. Insofar as there was a delay of
a year and four
months from when the notice was given until the
institution of the current proceedings, the respondent has not
furnished any details
of the prejudice allegedly suffered. There is
no indication of how and to what extent such delay may have
compromised the respondent’s
defence or conduct of the matter
overall. The point can be taken no further.
Relief
and order to be granted
[44]
At this stage, mention must be made, briefly, of the respondent’s
point, made in
argument, that the applicant failed to comply with
section 2(2)
of the
State Liability Act 20 of 1957
. To that effect,
the applicant is alleged not to have served a copy of the notice on
the State Attorney. Aside from the fact that
the point was never
raised in the respondent’s answering papers, the application
before the court is for condonation of non-compliance
with the
provisions of a different piece of legislation altogether. Alleged
non-service on the State Attorney has no bearing on
the matter at
hand.
[45]
The requirements of section 3(4)(b) of the Act remain central. It is
common cause that
the debt has not been extinguished by prescription.
Whereas the applicant’s explanation for the delay is not
perfect and
the merits of her claim are not unmistakeably
discernible, the interests of justice oblige the court to take into
account the context
of her application and the potential obstacles
facing a litigant in her position when required to comply with the
procedural requirements
of the Act. Mindful of the degree of
non-compliance (slightly less than three months) and the nature and
magnitude of the applicant’s
claim and the fact that it
concerns the rights of a child, the court is required, at the very
least, to ensure that the applicant’s
constitutional right of
access to court is not unreasonably thwarted. Taking into account all
the considerations necessary, the
court is satisfied that good cause
exists for the applicant’s failure to have complied with the
relevant provisions when
giving notice and that the respondent has
not suffered unreasonable prejudice. The overall impression made on
the court is that
condonation must be granted.
[46]
The
question of costs remains. In that regard, the applicant seeks not
only condonation for her non-compliance with the Act but
also leave
to file her supplementary affidavit. Inasmuch as the applicant’s
founding papers were inadequate and only remedied
by the delivery of
the supplementary affidavit, the respondent cannot be criticised for
having opposed the application. In the
circumstances, the court is
not inclined to apply the principle that costs should follow the
result, despite the applicant’s
argument to that effect.
[22]
The parties were
ad
idem
that the costs reserved on 3 March 2022 be made in the cause and the
court sees no reason to differ.
[47]
The following order is made:
(a)
the applicant is given leave to file her supplementary affidavit,
dated 7 June 2021;
(b)
the applicant’s non-compliance with sections 3(1) and 3(2) of
the Act is condoned;
and
(c)
costs of the application, including the costs reserved on 3 March
2022, are made costs in
the cause of the main action.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For the
applicant:
Adv Crouse SC, instructed by L. Pekoo Attorneys, Butterworth, C/O
Sigabi & Associates, King Williams Town.
For the
defendant:
Adv Mapoma, instructed by Messers Norton Fullbright South Africa Inc,
C/O Smith Tabata Attorneys, King Williams Town.
Date
of hearing:
12 May 2022
Date
of delivery of judgment:
26 July 2022
[1]
The full identity of Dr Burgin is not apparent from the affidavit.
[2]
See section 3(2)(a) of the Act.
[3]
Loubser,
Extinctive
Prescription
(Juta & Co Ltd, Kenwyn, 1996), at 80-1.
[4]
The court quoted from
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
1922 AD 16
, at 23.
[5]
At [18].
[6]
At [19].
[7]
JR Midgeley, ‘Delict’, in
LAWSA
(LexisNexis, Vol 15, 3
rd
ed, 2016), at para 3.
[8]
The reference is to
section 12(3)
of the
Prescription Act 68 of
1969
.
[9]
In argument, counsel for the respondent took the point that the
notice had not been attached to the applicant’s papers;
counsel for the applicant pointed out that a copy thereof was
nevertheless provided in response to the respondent’s rule
35(12) notice. Nothing more seems to turn on this.
[10]
See, too,
Die
Afrikaanse Pers Bpk v Neser
1948 (2) SA 295
(C), at 297.
[11]
1954 (2) SA 345 (A).
[12]
At 352H-352A.
[13]
The court quoted Heher JA in
Madinda
,
at [12].
[14]
This is confirmed by Mr Luxolo Peko in his confirmatory affidavit,
attached to the applicant’s supplementary affidavit.
[15]
The applicant states in her founding affidavit that she resides in
the Ndakana Administrative Area, Nqamakwe. This is not disputed
by
the respondent.
[16]
At
the least, t
he
applicant’s attorneys confirm that an oversight on their part
led to the delay in the dispatch of the notice, by registered
post,
on 13 March 2018. See paragraph 8.11 of the supplementary affidavit
and Mr Peko’s confirmatory affidavit, at 26 and
35 of the
record, respectively.
[17]
The provisions of
section 4(1)(a)
, read with Schedule 2 of the Act,
stipulate that notice must be served on the Head: Health with regard
to any proceedings to
be instituted against the Department of Health
in the Eastern Cape.
[18]
See paragraph 9, at 26 of the record.
[19]
The decision was handed down on 12 September 2017.
[20]
At [19].
[21]
At [23].
[22]
The applicant cited
Premier,
Western Cape Provincial Government NO v Lakay
[2012] JOL 28217
(SCA), where Cloete JA remarked, at [25], that
there was much to be said for the view that where an application for
condonation
is opposed the costs should follow the result.