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[2022] ZAMPMBHC 22
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Hlatshwayo and Others v Member of the Executive Council for Health: Mpumalanga (890/2017) [2022] ZAMPMBHC 22 (30 March 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 890/2017
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:YES
REVISED: YES
30/03/2022
In the matter between:
WILLIAM
FANA
HLATSHWAYO
First Applicant
THEMBI
ELIZABETH
MNTOMBENI
Second Applicant
MARIA
MTHOMBENI
Third Applicant
ZODWA
MTHOMBENI
Fourth Applicant
and
MEMBER OF THE
EXECUTIVE COUNCIL FOR
HEALTH:
MPUMALANGA
Respondent
J
U D G M E N T
MASHILE J:
INTRODUCTION
[1]
This is an application brought in terms of
the
Institution of Legal Proceedings against Certain
Organs of State, Act 40 of 2002 (“the Act”). The
Applicant seeks
an
order condoning his failure to
serve a notice as contemplated in Section 3(2)(a) of the aforesaid
Act timeously on the designated
person, Head of Department of the
Respondent, in terms of section 4(1)(a) of the Act read with the
relevant Schedule of the Public
Service Act of 1994.
[2]
The main action involves a claim for damages allegedly arising from
emotional shock
suffered by the Applicant following the death of his
son, Thulani Mthombeni, (“the deceased”). The Applicant
is said
to have sustained the emotional shock as a result of
witnessing the deceased receiving sub-standard medical treatment and
care
at hospitals under the control and management of the Respondent,
which saw his health and physical body decline.
[3]
As will be seen later in this judgment, it is a requirement under the
Act that if
an applicant intends to claim damages from an organ of
State such as the Respondent, a notice ought to be served on the Head
of
Department of the organ of State within six months from the date
on which the cause of action arose failing which an application
for
condonation must be launched. The condonation application must
satisfy three prerequisites described in Section 3(4)(b).
FACTUAL MATRIX
[4]
The background facts from which this application derives, is that on
20 April 2014
the deceased was assaulted and sustained a traumatic
subdural haemorrhage following which he was conveyed to Mmametlhake
Hospital.
He was admitted and temporarily detained for treatment
before he could be referred to Witbank Hospital. He was assessed and
found
to present with a scalp laceration of approximately 2cm. The
examination conducted concluded that the injuries with which he
presented
were too severe for a rural hospital. In consequence, the
Applicants were advised that he would be transferred to Witbank
Hospital,
which was considered a higher level hospital.
[5]
He was still capable of responding to messages on his arrival at the
Mametlhake Hospital
but his condition is said to have rapidly
degenerated leading to his confusion and low level of consciousness.
The first opportunity
to convey him to the Witbank Hospital by
ambulance only materialised on 21 April 2014. He arrived at the
Witbank Hospital for investigation
and further treatment at 10:47 on
that day. The Applicants allege that the deceased was refused
treatment and as a result of which
he had to be returned to
Mmametlhake Hospital later that evening.
[6]
He was again admitted back to Mametlhake Hospital at 20:00 on the
evening of 21 April
2014. The Applicants claim that the deceased
received no medical attention between the time of his readmission
until he was transferred
to Rob Ferreira Hospital on 22 April 2014 at
10:00. When he went back to Mametlhake Hospital, the deceased was not
aware of his
surroundings and his Glasgow Coma Scale had deteriorated
to 7/15 indicating a severe head injury. Doctors at the Mametlhake
Hospital
contacted their colleagues at Rob Ferreira Hospital and
arrangements for the deceased’s transfer began.
[7]
The deceased was in a coma when he arrived at the Rob Ferreira
Hospital. A CT brain
scan performed at the Rob Ferreira Hospital
revealed an acute subdural and subarachnoid bleeding. By this time
his Glasgow Coma
Scale score had dropped to 2 – 3/15 and this
was regarded as life threatening. Following the CT brain scan, he was
admitted
to the Intensive Care Unit (“ICU”) of the Rob
Ferreira Hospital for brain injury management.
[8]
On 14 May 2014, the deceased was still comatose but was able to
breathe independently
subsequent to removal of a ventilator. At this
stage, it had been accepted that Rob Ferreira Hospital could provide
no further
treatment for his recovery or rehabilitation. As such, he
was transferred back to the Mametlhake Hospital for commencement of
long-term
nursing care. On 11 June 2014, it is recorded that the
deceased had developed bedsores from which worms dropped onto the bed
and
floor. As a result of the bedsores his body also discharged a
repugnant odor. Later on 24 June 2014, he was declared dead.
[9]
The Applicant states that in consequence of the conduct of the
hospital personnel
that he received at the Witbank Hospital, he
lodged a complaint with Mr Dumisani Malamule (“Malamule”)
of the Respondent
on 21 April 2014. He specifically drew Malamule’s
attention to the behaviour of Dr Vilakazi who was persistent that the
deceased
was to be transported back to Mametlhake Hospital without
receiving treatment regardless of his deteriorating health condition.
Between that time and 24 June 2014, the date of death of the
deceased, the Applicant alleges to have been in touch with Malamule
who sounded very concerned. When he reported the death of the
deceased to him, he swore that he would require the medical personnel
at the Mametlhake Hospital to account to him.
[10]
Subsequent to the death of the deceased in 2014, the Applicant and
his wife went
for counselling at Old Mutual
in Meyerspark, Pretoria. Furthermore, he also had to see his pastor
to help him deal with the pain.
That said, the papers in the court
file are silent on how long and often the counselling was nor is
there an indication of this
with regard to the prayers that the
Applicant sought from his pastor. Believing that Malamule would still
assist him, he continued
to be in constant contact with him during
2014, 2015 and early 2016. Malamule, says the Applicant, never
disappointed him with
empty promises. The Applicant eventually
stopped contacting Malamule in 2016 and resolved to consult with
Attorney Ntuli, his former
school mate, on 28 June 2016.
ASSERTIONS
[11]
The Applicant is entitled to condonation as long as he has met all
the requirements described
in Section 3(4)(b) of the Act. These
requirements are firstly, that the debt must not have prescribed,
secondly, there must be
good cause for the delay in instituting the
action and thirdly, there must exist no unreasonable prejudice. It is
the Applicant’s
contention that he has met all these three
prerequisites. As such, he concludes, is entitled to condonation.
[12]
The Applicant referred to the matter
of
Mbhele
v MEC for Health for the Gauteng Province
[1]
,
which
I will fully discuss later in this judgement. The essence of his
argument is that the presence of psychological lesion is
not a
requirement for a court to award damages in these types of cases. The
Applicant mentions several cases, which according to
him fortifies
his position that medical evidence of a psychological lesion is not
strictly necessary.
[13]
Conversely, the Respondent is steadfast that evidence of experts or
some form of strong evidence
suggesting that the claimant experienced
difficulties that could be elevated to some form of a psychological
lesion is significant
before an award can be made. Other than the
claimant stating that he and his wife have attended counselling at
Old Mutual at Meyer’s
Park in Pretoria and that he is still
relying on prayers by his minister, no concrete evidence exists to
support that contention.
[14]
The case of Mbhele
supra
, did not remove the requirement that
where a claim is predicated on emotional shock, a claimant ought to
lead evidence to demonstrate
that he or she nonetheless suffered
shock as a result. Absent this form of evidence, concludes the
Respondent, a claim ought to
fail.
ISSUES
[15]
On the basis of the above facts, this Court is required to consider
whether or not
the Applicant has
made a case for the court to:
15.1 Condone his
omission to serve the Notice upon the Respondent within 6 months of
the date of incident from which the debt
arose as contemplated in
Section 3(4)(a) and (4)(b) of the Act;
15.2 Direct that
the notice dated 13 July 2016 served by the Applicant upon the
Respondent, the MEC for Health: Mpumalanga,
by registered mail on 14
July 2016 is proper and sufficient as a notification to the
Respondent indicating her intention to institute
legal proceedings;
15.3 Declare that
the action instituted by the Applicant against the Respondent on 16
May 2017 was validly and properly instituted;
15.4 Declare the
service upon the MEC for Health: Mpumalanga and not the Head of
Department to be adequate service;
15.5 Accept that
the Mbhele case is authority for the proposition that mere allegation
of suffering of emotional shock is
sufficient for purposes of
establishing a claim.
[16]
These issues ought to be addressed by having due regard to the
provisions of the three requirements
prescribed in Section 3(4)(b) of
the Act and case authority on the subject. Failure by the Applicant
to demonstrate that he has
observed all these requirements
conjunctively will necessarily result in a dismissal of the
condonation application.
LEGAL
FRAMEWORK
[17]
This application is founded
exclusively on the provisions of Section 3 of the Act. It will
therefore be instructive to refer to
those provisions in the Act.
Section 3 provides:
“
(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 that 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).”
[18]
Section 3(2) stipulates that 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
willfully 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.”
[19]
The Applicant having failed to give notice of his intention to
institute legal proceedings against
the Respondent within the
prescribed period of six months and the Respondent having not waived
service of the notice in terms of
Section 3(1)(b), he now applies to
court in terms of Section 3(4) that his failure be condoned. Section
3(4) lays down that:
“
(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)
If 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.”
[20]
In
Mohlomi
v Minister of Defence
[2]
,
the court described the universal purpose of clauses such as
section 3 of the Act in the following terms:
“
The
conventional explanation for demanding prior notification of any
intention to sue an organ of government is 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.
”
[21]
The advent of the Act has been followed by a significant rise of
litigation on the time bar contained
in Section 3(2)(a), on Section
3(4)(b), which concerns condonation and Section 3(4() (b((i) to (iii)
being the conditions that
a court hearing the application must
satisfy itself that they have been established prior to granting the
condonation. Recognising
the importance of the time bars in the Act,
the Constitutional Court in Mohlomi case
supra
stated at
Paragraph 11:
“
Rules that
limit the time during which litigation may be launched are common in
our legal system as well as many others. Recognising
the significance
of ordinate delays in litigating damage theinterests of justice. They
protract the disputes over the rights and
obligations sought to be
enforced, prolonging the uncertainty of all concerned about their
affairs. Nor in the end is it always
possible to adjudicate
satisfactorily on cases that have gone stale. By then witnesses may
no longer be available to testify. The
memories of ones whose
testimony can still be obtained may have faded and become unreliable.
Documentary evidence may have disappeared.
Such rules prevent
procrastination and those harmful consequences of it. They thus serve
a purpose to which no exception in principle
can cogently be taken.”
[22]
A
court needs to be satisfied that all the three prerequisite set out
in Section 3(b)(i) to (iii) have been observed prior to granting
condonation. In this regard I can say no more than refer to paragraph
11 of
Minister
of Agriculture and Land Affairs v C J Rance (Pty) Ltd
[3]
where the court stated:
“
[11] As can be
seen, s 3(4)(b) circumscribes a court’s power by requiring that
it be satisfied that: (i) the debt has not
been extinguished by
prescription; (ii) good cause exists for the failure by the creditor,
i.e. to serve the statutory notice according
to s 3(2)(a) or to serve
a notice that complies with the prescripts of s 3(2)(b); and (iii)
the organ of State was not unreasonably
prejudiced by the failure.
These requirements are conjunctive and must be established by the
applicant for condonation.”
[4]
[23]
A court possesses an extensive discretion when deciding whether or
not an applicant has shown
good cause, which it must apply fully
conscious of the merits of the matter seen in their entirety
[5]
.
This approach was endorsed by the Constitutional Court in the matter
of
Ferris
v FirstRand Bank Ltd
[6]
where it was stated that precision is not the only consideration in
determining whether an application for condonation may be granted.
The test for condonation, said the Court, is whether it is in the
interest of justice to grant it. Pertinent factors to determine
the
interest of justice are the Applicant’s prospects of success
and importance of the issue to be decided.
[24]
Of further significance on the issue of discretion on whether or not
a litigant has shown good
cause is the statement in
Vlok
NO v Sun International South Africa Ltd
[7]
that
t
he
broad discretion enjoyed by a court when considering whether or not a
litigant has shown good cause does not extend to incorporate
ignorance of an Act of Parliament nor is it a free-floating power to
condone non-compliance with statutory time periods. The power
ought
to be exercised circumspectly and judiciously.
[25]
The
above pronouncement was fortified in
Mabaso
v National Commissioner of Police and Another
[8]
.
Where the following was said on the interpretation of Section 3 of
the Act:
“
Interpretive
framework
[20] A resolution of
the present dispute requires a consideration of a proper construction
of s 3 of the Act, read contextually.
The principles which should
inform that exercise are trite. The starting point is the
Constitution. It commands courts in s 39(2),
when interpreting any
legislation, to promote the spirit, purport and objects of the Bill
of Rights. Courts must also adopt a generous
and purposive approach.
”
ANALYSIS
COMPLIANCE
WITH THE PROVISIONS OF SECTION 3(4)(B)(I) TO (III)
[26]
The first of the three prerequisites is that the debt must not have
been extinguished by prescription.
The prescription period for this
kind of debt is three years and a claimant may launch the condonation
either before or after issue
of summons. The debt having arisen on 24
June 2014, the date of death of the deceased, and summons having been
issued on 16 May
2017, it is evident that the action had not been
extinguished by prescription when the action was instituted.
[27]
The second of the requirements is that good cause must be established
why a court should exercise
its discretion in favour of an applicant.
whether or not an applicant has shown good cause will depend
on the overall impression made on the court which brings a fair mind
to the facts described by the parties. This is the standard of proof
that is required in the assessment of good cause. It was against
that
background that the court in Madinda
supra
said:
“
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.”
[28]
Without detracting from the fact that ultimately the interest of
justice will dictate whether
or not it is appropriate to grant
condonation, case
authority suggests that a
collective demonstration of the following factors should attract
favourable consideration from a court
when good cause is assessed:
28.1
Prospects of success in the action;
28.2
Reasons for the delay;
28.3
Sufficiency of the explanation offered;
28.4
Bona fides
of the applicant; and or
28.5
Any contribution by other persons to the delay (and the
applicant’s responsibility therefor).
See, Madinda
supra
at Paragraph 10.
[29]
I now consider these individual sub-topics under good cause below.
PROSPECTS
OF SUCCESS IN THE ACTION
[30]
Here the debate between the parties has centred around whether or not
a claimant ought to prove
psychological lesion before he can be said
to have shown prospects of success. The Applicant has referred this
court to the case
of
Road
A
ccident
Fund v Sauls
[9]
where a psychological lesion
or psychiatric injury or psychological disturbance was described as
any recognisable harmful infringement
of the brain and nervous system
of a person. Counsel also referred to the Australian High Court case
of
Jaensch
v Coffey
[10]
.
The terms in which psychological lesion is described are no different
from the Sauls case.
[31]
The first time a court in this country intimated that it may be
possible to award damages caused
by emotional shock was in
Bester
v Commercial Union
Versekeringsmaatskappy
[11]
.
The court stated that
there
is no reason in our law why somebody who, as the result of the
negligent act of another, has suffered shock or psychiatric
injury
should not be entitled to compensation, provided the possible
consequences of the negligent act should have been foreseen
by the
reasonable person who should find himself in the place of the
wrongdoer.
[32]
The question that arises here is how far should an applicant go to
establish that good cause
exists? The court in
Ethekwini
Municipality v Crimson Clover Trading 17 (Pty) Ltd
[12]
states
that it is not enough for an applicant to merely allege that there is
good cause for the granting of the condonation, the
applicant must
show that there is good cause.’ What is clear from the
statement of the court is that a mere allegation that
there is good
cause will not suffice. Accordingly, the question is, has the
Applicant in this case made more than an allegation?
[33]
The Applicant has alleged that he and his wife attended counselling
at Old Mutual in Meyerspark,
Pretoria. I did not see any proof of the
type of counselling that the Applicant and his wife claim to have
attended. Insofar as
reliance on the prayers of the pastor are
concerned, the Applicant has furnished, only in reply to the
answering affidavit, some
document allegedly emanating from the
Applicant’s pastor wherein it is indicated that he suffers from
post-traumatic stress
disorder.
[34]
I agree with the Respondent that the document said to be coming from
the pastor is inadmissible.
First, the pastor does not furnish his
credentials. Second, post-traumatic stress disorder is a condition
ordinarily diagnosed
by psychiatrists, not pastors. Third, its
introduction amounts to trial by ambush as the Respondent could not
deal with it. Thus,
in the absence of evidence that the pastor is
suitably qualified to make the diagnosis, the document must be
rejected. I also note,
with approval, the Respondent’s
observation that it is extraordinary that the Applicant claims to
have been suffering emotional
shock since the death of the deceased
that happened approximately eight years ago but to date no proper and
detailed treatment
of such has been produced.
[35]
Of course I am saying that the attendance of counselling and
receiving prayers from the pastor
is no proof that he is suffering
from emotional shock. Emotional shock is as described by Sauls
supra,
which is radically different from what the Applicant would have
this court believe. Even assuming that the test to be applied by
the
trial court is indeed whether the emotional trauma that he is
suffering is associated with a detectable psychiatric lesion;
not a
diagnosed psychiatric lesion, the Applicant has not made a case for
emotional trauma at all.
[36]
The Respondent has argued that from the demise of the deceased, there
is no question that the
Applicant suffered grief. However, a claimant
is expected to demonstrate a noticeable psychiatric injury that
requires medical
treatment and not mere bereavement. In the
Australian case of
Tame
v New South Wales
[13]
,
which is mentioned in the case of
Komape
v Minister of Basic Education
[14]
(“Komape”) it is stated that ‘s
ave
in exceptional circumstances, a person is not liable in negligence,
for being a cause of distress, alarm, fear, anxiety, annoyance
or
despondency, without any resulting recognised psychiatric illness’
.
[37]
Also significant is another overseas case of
Alcock
v Chief Constable of the South Yorkshire Police
[15]
where the following is stated:
“
Grief, sorrow,
deprivation and the necessity for caring for loved ones who have
suffered injury or misfortune must, I think, be
considered as
ordinary and inevitable incidents of life which, regardless of
individual susceptibilities, must be sustained without
compensation... but to extend liability to cover injury in such cases
would be to extend the law in a direction for which there
is no
pressing policy need and in which there is no logical stopping
point”
.
[38]
Contrary to what the Applicant would have this Court believe and as
was held in Sauls’
case
supra
at par 13, the Applicant
is required to show, not only emotional trauma, but sustenance of a
discernible psychiatric injury. Bringing
this closer to the case
in
casu,
it is evident that all the evidence that has been levied
before court establishes nothing that could be said to amount to a
‘detectable
psychiatric injury’. This must be
distinguished from ordinary grief that most people would experience
after incidents such
as the current.
[39]
The Applicant has referred this Court to the matter of Mbhele
supra
where the court directed payment of damages for emotional shock and
trauma against the background of non-existence of medical evidence
of
lasting trauma. Notwithstanding the aforesaid, the court still
pronounced that ‘there can be no doubt that the Appellant
experienced severe shock, grief and depression’. While what
happened in Mbhele might be perceived to be in support of the
Applicant’s assertion, it should be borne in mind that the
court was requested to decide legal issues on a stated case that
the
claimant had sustained a recognisable psychiatric lesion.
[40]
Furthermore, in Komape
supra
which is a later decision of the
same court, the court clarified that Mbhele is no authority for the
proposition that our law has
changed and that claims are recognised
for grief where there is no psychiatric lesion. Accordingly, for
clarity on the subject
one ought to look to decisions prior and
subsequent to Mbhele such as Sauls and Komape respectively.
[41]
The nature of emotional shock or psychiatric injury makes it
difficult to identify because it
is not tangible and patently
observable. It is for this reason that claimants cannot simply make a
bald and unsubstantiated allegations
of emotional shock that has led
to complicated mental illnesses without proper accompanying
diagnosis. The Applicant’s claim
that courts have recently made
awards in circumstances where no psychiatric injury was present must
be rejected.
[42]
Virtually in all the cases referred to by the Applicant on this point
reveal that experts were
employed to testify and psychiatric injury
established. To start with, Bester that I have mentioned earlier, a
general practitioner
testified that he had referred the claimant for
psychiatric tests, had administered psychiatric therapy and that he
would still
require psychiatric therapy in the future. Not only was
the evidence of the general practitioner not opposed but no expert
was
called to contradict it.
[43]
Equally, in Sauls
supra
the claimant was seen by a general
practitioner, treated for shock following which she was diagnosed
with post-traumatic stress
disorder. What is significant here is that
the parties agreed that the claimant had suffered shock and emotional
trauma, which
had resulted in the claimant suffering post-traumatic
stress disorder. While the issue of emotional shock developing into a
post-traumatic
stress disorder became common cause, the court
remarked that because proof of the actual harm suffered and its
sequelae
were required, the burden would be on the claimant.
[44]
In
Barnard
v Santam
[16]
the court thought it wise to state that the duty to prove a
detectable psychiatric lesion remains with the claimant, which can
be
accomplished by leading supportive psychiatric evidence. The court
decided as it did because of the agreement of the parties
that it had
to deal with legal issues on the assumption that the claimant
suffered a shock leading to a recognised and serious
psychiatric
lesion. It would appear that even in Mbhele
supra
there was an acceptance of the facts in the stated case that the
claimant had suffered from depression.
[45]
The Applicant’s assertion concerning emotional shock represents
no more than a mere allegation
without proof. He was required to have
expert reports confirming that indeed he has suffered emotional shock
which in turn has
led to an identifiable psychiatric lesion. Instead
of this, the Applicant obtained reports of experts that seek to
verify how the
deceased was treated and ultimately his death. That
evidence, on its own and whether it is true or not, cannot be
adequate to find
a claim based on a psychiatric injury. As such, The
Applicant has failed to establish a
prima facie
case in this
regard.
REASON
FOR THE DELAY
[46]
Insofar as the account for the delay, the second requirement, is
concerned, the Applicant explains
that he complained to Malamule as
early as 21 April 2014 about the behaviour of the Witbank Hospital
personnel in particular, Dr
Vilakazi towards the treatment of the
deceased. Quite evidently, the complaint was directed at the
correction of the behaviour
of the hospital personnel and their
administration of medical treatment to the deceased. The papers are
silent on what the complaints
were about after the deceased had died.
Other than that, the Applicant continued to communicate with Malamule
until early 2016,
evidence on this is exceedingly flimsy and without
any validating material.
[47]
The Applicant’s complaints to the nursing personnel
are
not captured anywhere on record making it difficult to verify.
Similarly, his complaints to Malamule is denied and all that
the
Applicant could do, and only in reply to the answering affidavit, is
to cite a mobile telephone number allegedly belonging
to Malamule and
a message from Vodacom that it does not keep records of telephone
calls that are so old. Insofar as counselling
is concerned, no record
of such treatment having occurred has been annexed to the papers. But
even if this Court accepts that he
complained to those parties and
received assistance from counselling and prayers of the pastor, he
will still fall far short of
proving a psychiatric lesion.
[48]
With regard to the apparent unpleasant smell that could be picked up
when walking into the deceased’s
room, that his body was
unsightly, had bedsores from which worms dropped onto the bed and the
floor, it is notable that not even
a single medical report presented
to court captured any of this. The Respondent’s acknowledgment
that the body of the deceased
might have been unsightly and possibly
produced stench does not assist the Applicant because, as the
Respondent states, such was
expected due to the deceased developing
bedsores. Whatever the condition of the deceased might have been, the
point is that the
Applicant has not established a link between the
sub-standard medical treatment and a recognisable psychiatric injury
that he claims
to have.
[49]
Whichever way one scrutinises the facts from the time of the demise
of the deceased to the period
when the notice was prepared and served
(14 July 2016), the lapsed time is not only unexplained but it is
also unconscionable.
Every explanation that there is, has been
validly challenged and criticized by the Respondent. Even if this
Court were to accept
that he complained to Malamule, would it take a
Warrant Officer almost two years to realise that the source from
which he was expecting
aid was unlikely to deliver? The Applicant’s
reason for the delay is unacceptable and it is inadequate to
constitute good
cause.
[50]
It is not decipherable from the papers in the file when the plea was
served but it is evident
that having served the notice on 14 July
2016, the Applicant issued papers commencing the action proceedings
on 16 may 2017 and
only three years thereafter launched this
application on 30 October 2020. I am at a complete loss why there is
no explanation of
the lapse of three years before the application was
launched. For this reason, I must find that there is no sufficient
explanation
firstly, of the period between the death of the deceased
and the service of the notice, 14 July 2017, on the one hand and
secondly,
the date of issuing of summons and the bringing about of
the application, on the other.
UNREASONABLE
PREJUDICE
[51]
This is the third requirement as listed under Section 3(4)(b)(iii)
and it is perhaps important
to stress that it is only unreasonable
prejudice that will be recognised and not any ordinary unqualified
form. How a court ought
to approach this is described at Paragraph 21
of the Madinda case
supra:
“
The third leg
of Section 3(4)(b) required the appellant to satisfy the court that
the respondent had not been unreasonably prejudiced
by the failure to
serve the notice timeously. This must inevitably depend on the most
probable inference to be drawn from the facts....
The approach to the
existence of unreasonable prejudice (not simply any level of
prejudice ...) requires a common sense analysis
of the facts, bearing
in mind that whether the grounds of prejudice exist often lies
peculiarly within the knowledge of the respondent.
Although the onus
is on an applicant to bring the application within the terms of the
statute, a court should be slow to assume
prejudice for which the
respondent itself does not lay a basis
.”
[52]
The Respondent has contended in this regard that it has been
unreasonably prejudice by the late
service of the notice and that the
application for condonation should be dismissed on that ground. The
Respondent has further pointed
out that while it is defending the
claim, it does so under frustrating circumstances as some of its
potential witnesses have left
its employ and it does not know where
to find them. It is probably right that the allegation that potential
witnesses are not available
anymore is prejudicial but understood
against this Court’s findings on the other requirements, it is
nonetheless unreasonably
prejudicial.
[53]
Had this Court found that good cause was established, there would
exist a reason to insist that
the Respondent could enquire from its
current employees to locate the whereabouts of its former employees.
Other measures could
include, amongst others, engagement of tracers
and other methods of similar nature. However, to demand of the
Respondents to do
so in circumstances where prospects of success in
the action are virtually non-existent would be unreasonable and will
not serve
any purpose.
[54]
I note the Applicant’s assertion that besides the unreasonable
prejudice alleged by the
Respondent brought about by the late service
of the notice, it has nonetheless been able to serve and file all its
opposing papers
in the action. Both parties have consulted experts
and are both legally represented before this Court and the main case.
Given
these facts, it is somewhat challenging to apprehend the
unreasonable prejudice allegedly suffered by the Respondent. This
might
well be the case but the finding that prospects that the
Applicant will be successful in the action do not exist far outweigh
the
Applicant’s argument.
[55]
Another related but different and discrete argument to the above
raised by the Respondent is
that the notice was not served upon the
Head of Department of Health as contemplated in the relevant statute.
This contention is
raised in circumstances where the notice despite
it having been served incontestably late on the MEC for Health, it
has nonetheless
elicited the anticipated response, which has in turn
rendered unreasonable prejudice inconspicuous. Like the argument in
the preceding
paragraph and to the extent that there is a finding by
this Court that prospects of success are limited, any decision one
way or
the other will be vain.
APPLICATION
TO STRIKE OUT
[56]
I am mindful that the Respondent has brought application to strike
out certain paragraphs in
the replying affidavit of the Applicant and
that the Applicant has responded thereto. I think that it will be
gratuitous and will
serve no purpose to consider the application to
strike out as its utility has been superseded by this Court’s
decision on
the condonation application.
THE
CASE FOR THE SECOND TO FOURTH APPLICANTS
[57]
I note that although this application involves four Applicants, the
founding affidavit in the
court file refers to the First Applicant
alone. In fact, no evidence exists in the court file that the other
three Applicants have
put any evidence before court in the form of
affidavits for consideration. Accordingly, I concluded that no such
evidence was levied
at all and have treated the matter as comprising
only one applicant.
CONCLUSION
[58]
Having considered the overall circumstances and without diminishing
the sub-standard medical
treatment that was offered to the deceased,
it is not in the interest of justice to grant the application for
condonation. The
court should be understood to be saying that because
there is lack of proof of a detectable psychiatric lesion, the
Applicant has
failed to present a
prima facie
case
.
ORDER
[59]
In the result, I make the following order:
The
application for condonation is dismissed with costs.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 30 March 2022 at 10:00.
APPEARANCES:
Counsel
for the Applicant:
Adv
L Haskins
Instructed
by:
Gildenhuys Malatji Inc
C/O Pieter Nel
Attorneys
Counsel
for the Respondent:
Adv DH Wijnbeek
Instructed
by:
Adendorff Theron Inc
Date
of Judgment:
30 March 2022
[1]
[2016]
ZASCA 166
[2]
[1996] ZACC 20
;
1997 (1) SA 124
(CC)
[3]
2010 (4) SA 109 (SCA)
[4]
See also
,
Madinda v Minister of Safety & Security
2008 (4) SA 312 (SCA).
[5]
See,
Gumede
v Road Accident Fund
2007 (6) SA 304 (C).
[6]
2014 (3) SA 39
(CC) at 43 G-44A
[7]
2014
(1) SA 487 (GSJ)
[8]
(1222/2017)
[2019] ZASCA 43
;
2020 (2) SA 375
(SCA) (29 March 2019)
[9]
2002 (2) SA 55 (SCA)
[10]
[1984] HCA 52
;
(1984) 155 CLR 549
at 567 (referred to in 9 Lawsa 2
Ed at Para 545)
[11]
1973
(1) SA 769
(A)
See
at 779 d-g.
[12]
2021 JDR 1419 (SCA) at Para 11
[13]
[2002] HCA 35
par 7
[14]
2020 (2) SA 347 (A)
[15]
[1992] 1 AC 311
(HL) at 931a-b cited in Komape par 34, 361A-B
[16]
[1998] ZASCA 84
;
1999 (1) SA 202
(A)