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[2022] ZAECBHC 25
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Member of the Executive Council for Health, Eastern Cape Province v Diko (583/2018) [2022] ZAECBHC 25 (14 September 2022)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No. 583/2018
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE PROVINCE
Applicant
and
PERM
BANGILIZWE
DIKO
Respondent
JUDGMENT
IN RESPECT OF
APPLICATION
FOR LEAVE TO APPEAL
HARTLE J
[1]
The applicant seeks leave to appeal against
the whole of my judgment and order made on 22 March 2022.
[2]
I do not intend to repeat the grounds
relied upon, which are succinctly set out in the application.
[3]
Firstly, regarding the issue of the
identity of the debtor, Mr. Du Toit, who appeared on behalf of the
applicant, suggested that
it was not the plea of the respondent that
he was unaware of the identity of the applicant. He referred me to
the “ambiguous”
passage in paragraph 2.4 of the
respondent’s replication. I, however, read the word “creditor”
in the first line
thereof (last word) as “debtor” and as
an obvious typographical error. I say so because this issue of the
respondent’s
lack of knowledge of the identity of the organ of
state is repeated in sub-paragraphs 8.4 and 8.5 of the replication as
a consistent
theme. Mr. Mpahlwa (who appeared on behalf of the
respondent) confirmed this to have been the case of the respondent in
the replication
and by his submission in the present application that
the question of the identity of the party causing and allegedly
responsible
for the damage is inextricably bound up with the question
of the minimum facts giving rise to the debt. In other words, as was
submitted by him, the identity of the debtor could only have become
known to the respondent after gaining either actual or constructive
knowledge of the minimum facts necessary to institute the action.
[4]
I therefore disagree that I decided a
matter that was not in issue between the parties.
[5]
On the issue of my failure to have attached
any or sufficient weight to the evidence of Dr. Osman regarding what
he said the respondent
revealed to him concerning his knowledge of
the facts giving rise to the debt, I concede that in the absence of
any serious cross
examination of him and in the light of the fact
that the respondent failed to testify himself, that another court
would likely
come to a different conclusion on the value of his
testimony and its application to the legal determination at hand.
[6]
Likewise,
I agree that another court would likely find that the respondent’s
failure to have testified was fatal to his case
and that I ought to
have drawn the appropriate negative inference that precedent
demands.
[1]
[7]
On
the issue of information about the medical staffs’ negligence,
I am not necessarily in agreement, but given my concession
above, it
is probably of little consequence to refute the suggestion that I did
not recognize that knowledge of negligence (as
a conclusion of law)
falls outside of the provisions of section 12 (3) of the Prescription
Act, No.
68
of 1969
.
[2]
[8]
To
the contrary I repeated what the Constitutional Court in Links v
Department of Health, Northern Province
[3]
emphasized should form the full-fact knowledge in a claim for
professional medical negligence. The court there stated that a party
relying on prescription must at least show that the plaintiff was in
possession “of sufficient facts (the primary facts)
to cause
them on reasonable grounds to think that the injuries were due to the
fault of the medical staff.
[4]
This is the test that I applied and the extent of the negligence kept
in mind.
[9]
On the issue of deemed knowledge, I agree
that a different outcome would likely pertain assuming the acceptance
of Dr. Osman’s
evidence as providing the “primary facts”.
[10]
Finally, I agree that the question of
costs, seen through the prism of the reasonable prospect of success
that the applicant contends
for, would likely attract criticism that
the matter was not, after all, so complex as to justify the costs of
two counsel.
[11]
In the result I issue the following order:
1.
The applicant is granted leave to appeal to
the full bench of this court against the judgment and order of Hartle
J dated 22 March
2022.
2.
Costs are in the appeal.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
12 September 2021
DATE
OF JUDGMENT: 14
September 2022*
*Judgment
deemed delivered at 09h30 on this date by email to the parties.
APPEARANCES
:
For
the applicant: Mr. P Du Toit instructed Norton Rose Fullbright South
Africa Inc., c/o Smith Tabata, East London (ref. Ms. M
Demmer)
For
the respondent: Mr. T Mpahlwa instructed by Cinga Nohaji, East London
(ref. Mr. Nohaji)
[1]
Galante
v Dickson
1950 (2) SA 460
(A) at 465.
[2]
See
Mtokonya v Minister of Police 2017 (11) BCLR 1443 (CC).
[3]
2016 (4) SA 414 (CC).
[4]
Pars
19 and 20 of my judgment. See as well as footnotes 15 and 16.