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[2022] ZAECBHC 48
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N.M obo L.N.M v MEC For Health, Eastern Cape Provincial Government (315/2018) [2022] ZAECBHC 48 (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[...]
M[...] obo
L[...]
N[...] 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).
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 Messrs 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.