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[2011] ZASCA 224
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Premier of the Western Cape Provincial Government NO v Lakay (184/11) [2011] ZASCA 224; 2012 (2) SA 1 (SCA); [2012] 1 All SA 465 (SCA) (30 November 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 184/11
In the matter between:
PREMIER
OF THE WESTERN CAPE PROVINCIAL
GOVERNMENT
NO
…..................................................................................
Appellant
and
BERENAY
LAKAY
…...............................................................................
Respondent
Neutral citation:
Premier of the Western Cape
Provincial Government NO v
Lakay
(184/11)
[2011] ZASCA 224
(30 November
2011).
Coram:
NAVSA, CLOETE, MALAN and THERON JJA and
PETSE AJA
Heard:
14 November 2011
Delivered:
30 November 2011
Summary: Institution of Legal Proceedings against
Certain Organs of State Act 40 of 2002
:
definition of
'creditor'
includes natural guardian acting for minor, with the
result that natural guardian is obliged to give notice of minor's
claim; requirements
for condonation under
s 3(4)(
b
)
for failure to give notice, discussed and applied.
Prescription Act 69 of 1969
: provisions relating
to extinctive prescription must be kept separate from notice
provisions of Act 40 of 2002.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape High Court, Cape
Town (Blignault J sitting
as court of first instance):
The appeal is dismissed, with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (NAVSA, MALAN and THERON JJA and PETSE AJA
concurring):
[1] The appellant is the Premier of the Western Cape.
The respondent is the mother and natural guardian of her minor child,
Junate.
It is convenient to refer to the Premier as such and to the
respondent as 'the applicant'. On 12 December 1998 Junate was born at
the Tygerberg Hospital (a provincial hospital) severely brain
damaged. On 9 February 2006 the applicant, as the plaintiff and
acting in her capacity as aforesaid, instituted an action for damages
against the Premier, claiming that it was the negligence of
the
Province's employees at the Tygerberg Hospital that caused Junate's
condition. In March 2009 the Premier delivered a special
plea
alleging that the applicant had not timeously given notice of the
proceedings as required by s 3 of the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002 (the 2002
Act). In response, the appellant brought motion proceedings
for a
declaratory order that the 2002 Act was not applicable and in the
alternative, for condonation of the non-timeous service
by her of a
notice at the end of October 2003. I should say immediately that the
Premier did not contend that the notice did not
comply, so far as its
contents are concerned, with the 2002 Act.
[2] The court a quo (Blignaut J) granted an order
declaring that the applicant's action was not barred by reason of
non-compliance
with the provisions of s 3 of the 2002 Act (the reason
for the formulation of the order in these terms will become apparent
shortly)
and ordered the Premier to pay the applicant's costs
occasioned by the opposition to the application. Leave to appeal to
this court
was subsequently granted by the court a quo.
[3] It would be convenient to set out the relevant
provisions of the 2002 Act at this point. I shall begin with s 3:
'(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;
. . .
(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);
. . .
(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.'
Other relevant provisions are s 2(2) which is
referred to in s 3(3)(
b
)
(it is convenient to quote the transitional provisions in ss 2(3)
and (4) as well) and certain definitions:
'2(2) Subject to section 3 and
subsections (3) and (4), a debt which became due ─
(
a
)
before the fixed date, which has not been extinguished by
prescription and in respect of which legal proceedings were not
instituted
before that date; or
(
b
)
after the fixed date,
will be extinguished by
prescription as contemplated in Chapter III of the Prescription Act,
1969 (Act 68 of 1969), read with the
provisions of that Act relating
thereto.
(3) Subject to subsection (4),
any period of prescription which was applicable to any debt referred
to in subsection (2)(
a
),
before the fixed date, will no longer be applicable to such debt
after the fixed date.
(4)(
a
)
The expired portion of any period of prescription applicable to a
debt referred to in subsection (2)(
a
),
must be deducted from the said period of prescription contemplated in
Chapter III of the
Prescription Act, 1969
, read with the provisions
of that Act relating thereto, and the balance of the period of
prescription so arrived at will constitute
the new unexpired portion
of prescription for such debt, applicable as from the fixed date.
(
b
)
If the unexpired portion of the period of prescription of a debt
referred to in paragraph (
a
)
will be completed within 12 months after the fixed date, that period
of prescription must only be regarded as having been completed
12
months after the fixed date.'
The relevant definitions are these.
'Creditor' means
'a person who intends to
institute legal proceedings against an organ of state for the
recovery of a debt or who has instituted
such proceedings, and
includes such person's tutor or curator if such person is a minor or
mentally ill or under curatorship, as
the case may be.'
'Debt' means
'any debt arising from any cause
of action ─
(
a
)
which arises from delictual, contractual or any other liability,
including a cause of action which relates to or arises from any
─
(i) act performed under or in
terms of any law; or
(ii) omission to do anything
which should have been done under or in terms of any law; and
(
b
)
for which an organ of state is liable for payment of damages.'
'Fixed date' means
'the date of commencement of
this Act',
which was 28 November 2002.
'Organ of State' includes
'(
a
)
any . . . provincial department'.
The essence of these provisions is that a 'creditor'
must give an 'organ of state' written notice of intention to
institute legal
proceedings for the recovery of a 'debt', within six
months from the date on which the 'debt' became due, before the legal
proceedings
may be commenced; and if this has not been done, and if
the 'organ of state' relies on the failure to do so, a court may
grant
condonation to the 'creditor' within defined parameters.
[4] The court a quo held that the 2002 Act was not
applicable as the applicant did not fall within the definition of
'creditor'.
The court nevertheless went on to deal with the
applicant's application for condonation in case its interpretation
was incorrect,
and found that the applicant would have been entitled
to condonation had she been a creditor ─ hence the terms of the
order
made.
[5] In finding that the respondent was not a creditor,
the court a quo found support in the general principle that where a
guardian
acts on behalf of a minor, it is still the minor who is a
party to the action:
Guardian National
Insurance Co Ltd v Van Gool NO
1992 (4) SA 61
(A) at 66H-I. The court a quo also found support for its
interpretation in two sections of the
Prescription Act 68 of 1969
,
namely:
(a)
Section 13(1)(
a
)
which provides that the completion of prescription is delayed 'if . .
. the creditor is a minor or is insane or is a person under
curatorship . . . '. The learned judge said that this section made it
clear that the term 'creditor' in the
Prescription Act refers
to a
minor and not his or her guardian, and went on to say that the
provisions of the
Prescription Act, including
s 13(1)(
a
)
thereof, were expressly incorporated in the 2002 Act by s 2(2)(
b
);
and
(b) section 12(3), which provides:
'A debt shall not be deemed to
be due until the creditor has knowledge of the identity of the debtor
and of the facts from which
the debt arises: Provided that a creditor
shall be deemed to have such knowledge if he could have acquired it
by exercising reasonable
care.'
This section was interpreted in the following passage,
quoted by the court a quo, in
Brand v Williams
1988 (3) SA 908
(C) at 912F-913A:
'The mere fact that a creditor
who is a minor would not be able to institute proceedings without the
assistance of his guardian
is no reason for construing the word
"creditor" in s 12(3) as a reference to his guardian,
or for imputing the knowledge
of the guardian to the creditor for the
purpose of the section. To the extent that the decision in
Jacobs'
1
case is in conflict with this
approach, I decline to follow it and prefer instead the decision in
the
Greyling
2
case.
There is nothing in the
Prescription Act to
suggest that the word "creditor" in
s 12(3)
is to be construed as meaning the creditor's guardian,
if the creditor is a minor. Such a construction would in effect
involve
a rewriting of the section and in my judgment cannot be
supported.
In certain circumstances
knowledge acquired by an agent may be imputed to his principal. This
does not mean, of course, that, for
the purpose of
s 12(3)
of
the
Prescription Act, knowledge
acquired by a minor's guardian as to
the identity of the minor's debtor is necessarily to be imputed to
the minor. Moreover, I
can find nothing in the section to justify
such a construction. On the contrary, if regard is had to the nature
of the protection
afforded by the Act to minors, it appears that the
intention of the Legislature was not simply to impute to a minor the
knowledge
and maturity of his guardian. As already observed, a claim
arising during the minority of the creditor cannot become prescribed
until the expiry of at least one year from the day on which the
creditor attained his majority (see s 13(1)). This is so
regardless of the fact that the creditor's guardian may have been in
a position to institute action on the creditor's behalf for
many
years during the latter's minority and indeed for a period much
longer than the relevant prescriptive period.'
[6] The court a quo also found support for the
conclusion that the respondent was not a 'creditor' in the common
law, as set out
in
President Insurance Co Ltd
v Yu Kwam
1963 (3) SA 766
(A) at 773E-H:
'The principles of prescription,
including both acquisitive and extinctive prescription (verkrygende
en bevrydende verjaring) are
discussed by numerous Roman Dutch
writers; such writers are not in complete agreement on all aspects
but one principle in particular
seems to have been universally
accepted, namely that prescription did not run against a minor or
other person under disability
during such disability. One writer,
Troplong
,
seems to have suggested that this principle did not apply if the
minor had a guardian who would sue on his behalf, but
Pothier
did not hold the same view and
none of the Dutch writers seemed to have mentioned such an exception;
see Wessels,
Law of
Contract
, 2
nd
ed, vol 2, p 748, para 2764
et
seq
.'
[7] I cannot agree with the approach or the conclusion
of the court a quo. The provisions of the
Prescription Act were
not
incorporated in the 2002 Act by s 2 thereof for purposes of defining
who is a creditor under the latter Act. Section 2(2) provides
that a
debt such as the present will be prescribed as contemplated in
Chapter III of the Prescription Act
read with
the provisions of that Act relating thereto
.
This means that the question of prescription of Junate's claim is to
be determined according to the way in which the
Prescription Act
deals
with the claims of minors, and prescription does not run
against a person who acts on behalf of a minor. But that has nothing
to
do with the notice that has to be given in terms of s 3 of
the 2002 Act by a 'creditor' that is defined in the latter Act to
include persons who act on behalf of minors, the aspect to which I
now turn.
[8] What requires interpretation is the definition of
'creditor' in the 2002 Act. In that Act neither the definition of
'creditor'
nor the definition of 'debt' requires that the creditor's
claim must be for a debt owing to the creditor. Normally, that would
be the case: in ordinary parlance, a creditor is a person to whom a
debt is owed. But here the words 'includes such person's tutor
or
curator if such person is a minor or mentally ill or under
curatorship' make it clear that 'creditor' is to be interpreted as
extending to a person who acts in a representative capacity in
respect of, amongst others, a minor. The definition seems to
distinguish
between a minor and a person who is mentally ill. So far
as a minor is concerned, a tutor is a type of guardian. Thus, Lee and
Honoré
3
under the heading 'Kinds of guardians (tutors)' say that
'modern South African Law recognises the following kinds of guardians
(tutors)'
and list a testamentary tutor (nominated in a will or other
written instrument), an assumed tutor (assumed as co-tutor by a tutor
who has the power of assumption under the will or written instrument
nominating him or her) and a tutor dative (appointed by the
Master).
Wille's Principles of South African Law
4
under the heading 'Types of Guardians' includes a
testamentary tutor and a tutor dative together with natural
guardians, testamentary
guardians and assigned guardians. So far as
testamentary appointments are concerned,
s 72
of the
Administration of Estates Act 66 of 1965
and
s 27
of the
Children's Act 38 of 2005
both deal with the appointment of a third
party in a will by a parent who is the sole guardian of a minor
child. In the former
case, the appointment of the third party is 'to
administer the person [of the minor] as tutor, or to take care of or
administer
his property as curator'. The two functions of
guardianship are thus dealt with separately. In the latter case, the
appointment
of the third party is 'as guardian of the child',
comprehending both functions.
[9] The primary purpose of the 2002 Act is to require
that a notice of intention to institute legal proceedings be given at
an early
stage to an organ of state, obviously to enable it to
investigate the basis of the proposed claim:
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC)
para 9 and cases quoted therein in footnote 5. There is no
conceivable reason why the legislature in the case of a minor's
claim
would seek to impose the obligation to give such a notice only on
those who have the capacity to act on behalf of minors
because they
were appointed by will or the Master, and exclude such a requirement
in respect of persons who would most commonly
act on behalf of
minors, namely, their natural guardians. In my view, to give effect
to the primary purpose of the 2002 Act, the
word 'tutor' must be
interpreted as including a natural guardian.
[10] In conclusion on this point, I would say the
following. The
Prescription Act is
generous in protecting the rights
of minors against prescription. The 2002 Act, however, adds a
procedural hurdle to the enforcement
of all rights to which it
applies, including the rights of minors represented by natural
guardians, by requiring that a notice
be given within six months of
the date on which the debt became due before such rights can be
enforced. However, in the case of
all rights governed by the 2002
Act, including the rights being enforced by natural guardians
representing minors, there will always
be one and in some cases, two
safeguards: s 3(3)(
a
),
and s 3(4) which permits condonation for the late delivery of
the notice and with which this case is concerned. The provisions
of
s 3(3)(
a
) do not
apply in the present case, because of the provisions of s 3(3)(
b
)
read with s 2(2)(
a
).
5
But to avoid confusion in future, it is desirable to say
this. Section 3(3)(
a
)
deals with the question when a debt is regarded as having become due
for the purposes of the requirement of s 3(2)(
a
)
that a notice be sent within six months of such date. The section
contains provisions similar to the provisions of
s 12(3)
of the
Prescription Act, which
deal with when a debt is deemed to be due for
the purpose of extinctive prescription. But the sections must not be
conflated. They
serve different purposes and a creditor under the
Prescription Act includes
a minor but not a minor's natural guardian
enforcing the minor's claim, whereas a creditor under the 2002 Act
includes such a guardian.
[11] I therefore conclude that the applicant in bringing
the action in her capacity as mother and natural guardian of Junate
fell
within the definition of 'creditor' in the 2002 Act, and that
she accordingly had to give the notice required by that Act.
[12] The next question is whether the court a quo was
correct in its conclusion that condonation should be granted for the
applicant's
failure timeously to give notice of the action to the
Premier. In terms of s 3(4), a court may grant an application
for condonation
for such failure if it is satisfied on three matters:
(i) that the debt has not been extinguished by
prescription;
(ii) that good cause exists for the failure by the
creditor; and
(iii) that the organ of state was not unreasonably
prejudiced by the failure.
[13] This court said in
Madinda v
Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA
312
(SCA):
'The phrase "if . . . [the
court] is satisfied" in s 3(4)(
b
)
has long been recognised as setting a standard which is not proof on
a balance of probability. Rather it is the overall impression
made on
a court which brings a fair mind to the facts set up by the parties.
See eg
Die Afrikaanse
Pers Bpk v Neser
1948
(2) SA 295
(C) at 297. I see no reason to place a stricter
construction on it in the present context.'
[14] Before considering the three requirements on which
the court must be satisfied, I wish to deal with what is said in para
27
of
Madinda
:
'The question then arises as to
whether condonation should have been granted. We are by reason of the
misdirections entitled to
reconsider this question.'
To the extent that this passage suggests that a court of
first instance exercises a narrow discretion and that a court of
appeal
may not interfere in the absence of a misdirection,
6
I do not, with respect, consider that it correctly
states the law. Condonation of a procedural irregularity in court
proceedings
would ordinarily involve the exercise of such a
discretion, because the court is master of its own procedure;
7
but the discretion here has nothing to do with the
court's procedure and is conferred by statute. The phrase 'good
cause' is usually
encountered in applications for failure to comply
with court procedure, but principles set out in those cases should
not be applied
uncritically to the requirement of 'good cause' in
s 3(4)(
b
)(ii). I
shall return to this aspect when dealing with costs. At this stage I
would merely add that if condonation is refused by
a court, an
appellate court is in my view at liberty to decide the same question
according to its own view as to whether the statutory
requirements
have been fulfilled, and to substitute its decision for the decision
of the court of first instance simply because
it considers its
decision preferable.
[15] The first question on which a court must be
satisfied is that the debt has not been extinguished by prescription.
Section 2(1)
of the 2002 Act, read with the Schedule thereto, amended
or repealed a number of previous Acts with effect from 28 November
2002.
If the debt was extinguished by prescription in terms of any of
those Acts or the
Prescription Act,
8
condonation
cannot be granted ─ for the obvious
reason that no purpose would be served by granting condonation for
the late giving of
a notice in respect of a debt which no longer
exists and cannot accordingly be enforced. The purpose of the 2002
Act is not to
revive debts that have already prescribed.
[16] There are two possible Acts that may be of
application (and the Premier relied on both): the
Prescription Act
and
the Limitation of Legal Proceedings (Provincial and Local
Authorities) Act 94 of 1970 (the 1970 Act). In each case it may be
assumed
in favour of the Premier that the debt due to Junate became
due immediately he was born.
Section 13(1)
of the
Prescription Act
provides
:
'(1) If ─
(
a
)
the creditor is a minor . . .
. . .
(
h
)
. . . and
(i) the relevant period of
prescription would, but for the provisions of this subsection, be
completed before or on, or within one
year after, the day on which
the relevant impediment referred to in paragraph (
a
)
. . . has ceased to exist,
the period of prescription shall
not be completed before a year has elapsed after the day referred to
in paragraph (i).'
Junate is still a minor. His action has accordingly not
prescribed under the
Prescription Act. Nor has
his action prescribed
under the 1970 Act, which provided:
9
'2(1) Subject to the provisions
of this Act, no legal proceedings in respect of any debt shall be
instituted against an administration,
local authority or officer
(herein after referred to as the debtor) ─
(
a
)
. . .
(
b
)
. . .
(
c
)
after the lapse of a period of twenty-four months as from the day on
which the debt became due.'
The reason is that the period of 24 months is not a
'vervaltermyn' but a period of prescription, because there is no
inconsistency,
as contemplated in
s 16(1)
of the
Prescription
Act,
10
between
the provisions of the 1970 Act and the general
provisions of Chapter III of the
Prescription Act:
Meintjies
NO v Administrasieraad van Sentraal-Transvaal
1980
(1) SA 283
(T). The provisions of the
Prescription Act quoted
above
accordingly postpone the completion of the 24-month period specified
in the 1970 Act until a year after Junate ceases to
be a minor.
[17] The second question on which a court must be
satisfied is that 'good cause' exists for the failure by the creditor
to give
the notice. The minimum requirement is that the applicant for
condonation must furnish an explanation of the default sufficiently
full to enable the court to understand how it really came about, and
to assess his/her conduct and motives:
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352H-353A, quoted in the context of the 2002 Act in
Madinda's
case.
11
Beyond that, each case must depend on its own facts. As
Innes CJ said in
Cohen Brothers v Samuels
1906 TS 221
at 224 (in the context of an application for
leave to prosecute a lapsed appeal, but the remarks are equally
appropriate to s 3(4)(
b
)(
ii
)
of the 2002 Act):
'In the nature of things it is
hardly possible, and certainly undesirable, for the Court to attempt
to [define good cause]. No general
rule which the wit of man could
devise would be likely to cover all the varying circumstances which
may arise in applications of
this nature. We can only deal with each
application on its merits, and decide in each case whether good cause
has been shown.'
[18] In the present matter the court a quo set out in
full the explanation proffered by the applicant. I shall do the same:
'By way of background, I am a
machinist at Sugar Bay in Elsies Rivier, Cape Town. I completed
standard eight at school, and have
no other formal education. I have
never been married. I live in a wendy house in a back yard in Bishop
Lavis with my sons Jamie
and Junate, and my boy friend.
When Junate was born in December
1998, a female doctor told me at the hospital that his brain was
damaged and that he would never
be able to care for himself. The
doctor said that she would speak to the professor about the reasons
for Junate's condition, but
she never came back to me. She or anyone
else at the hospital never told me that Junate was injured because
the hospital had made
mistakes, and I was never told about any of the
facts or circumstances described in the hospital's clinical records
which, my experts
say, show that the hospital's negligence caused
Junate's brain injury. Therefore, I never even suspected that the
hospital might
have been negligent or that facts which could support
that conclusion existed.
Between December 1998 and
October 2003 I took Junate to the hospital for treatment on numerous
occasions, but no one there ever
told me that I had not been properly
monitored during my labour when Junate was born, or that he had
suffered a lack of oxygen
in my womb which could have been prevented.
I just assumed that Junate's condition occurred for reasons which
could not have been
prevented. No one ever showed my or Junate's
medical records to me at the hospital. And before 2003, no one at the
hospital or
anyone else told me or suggested to me that the hospital
had been negligent or that Junate had not been properly monitored
during
my labour when he was born.
It was only sometime in 2003
that a friend of mine whose son had been injured in a car accident
told me that De Vries Shields, my
attorneys of record, are willing to
investigate cases like Junate's and that sometimes a baby is born
retarded because of a hospital's
negligence. I went to see Ms
Marietjie Hall of De Vries Shields in August 2003 and gave her
permission to order Junate's and my
medical records from the
hospital. In October 2003, Ms Hall told me that she had obtained the
opinion of a medical expert who said
that the hospital records showed
I and Junate had not been properly cared for or observed during my
labour with Junate, and that
is was the likely reason for his mental
retardation.
I am told by Ms Hall that the
hospital's clinical notes which she obtained showed that during the
evening of 11 December 1998 while
I was in labour at the hospital
(Junate was born shortly after midnight), the hospital staff did not
properly monitor Junate's
condition and that the hospital staff did
not follow the doctor's orders that I be monitored every two hours
because of slow progress
with my labour, and that if I did not make
satisfactory progress an emergency caesarean should be performed. As
a result, Junate
was only born shortly after midnight in a severely
asphyxiated state.
I then gave De Vries Shields
permission to institute a claim against the defendant and, according
to Ms Hall, she then sent a letter
. . . on 29 October 2003 giving
notice of my intended legal proceedings, which letter the defendant
received by 31 October 2003.'
[19] The court a quo concluded on this aspect:
'Given applicant's
socio-economic background and the difficulties that she faced in
ascertaining the facts upon which her cause
of action is based, her
explanation for her failure to give the notice to respondent within
the requisite six month period, is
in my view acceptable.'
With respect, I entirely agree.
[20] The court also had regard to the evidence on
affidavit by the experts on both sides in regard to the applicant's
prospects
of success and the defences raised on behalf of the
Premier. I do not propose repeating the exercise. It suffices to say
that I
am not satisfied that the court a quo erred in its approach or
the conclusion to which it came on this aspect, both of which appear
from the following passages in the judgment:
'Counsel for respondent argued
that the court should approach the question of prospects of success
as in ordinary motion proceedings
ie on the basis of the facts
admitted or alleged by defendant. I do not agree with this
submission. Prospects of success is but
one of the factors to be
taken into account and the proper test at this stage, as set out in
the
Madinda
judgment, is to judge the issue
on the basis of all the facts set up by both parties. The court
furthermore, is not called upon
at this stage to decide the merits of
the action.
It is clear that there are
material differences between the experts to be called by applicant
and respondent. This is not unusual
in an opposed medical negligence
trial. Upon a conspectus of the medical evidence to be adduced by
applicant, I am however of the
view that she has fair prospects of
success in the action.'
[21] The ultimate conclusion of the court a quo on the
second requirement for condonation was that the applicant had shown
that
good cause existed for her failure to give the notice timeously.
That conclusion cannot be faulted.
[22] The third and final question on which the court
must be satisfied is that the Premier was not unreasonably prejudiced
by the
failure to give notice. Section 3(2)(
a
)
requires the notice to have been given within six months of the date
on which the debt became due. Because the debt became due
before the
fixed date, had not been extinguished by prescription and no legal
proceedings had been instituted in respect of it,
it is debt
contemplated in s 2(2)(
a
)
of the 2002 Act. Accordingly, in terms of the provisions of s 3(3)(
b
)
of that Act, it 'must be regarded as having become due on the fixed
date', ie 28 November 2002. The six-month period for the giving
of
notice expired on 27 May 2003. Notice was given some five months
late, on or about 29 October 2003. It is this five-month period
that
is relevant, as the court a quo correctly held.
[23] The deponent to the affidavits filed on behalf of
the Premier pointed to: the fact that records relating to the
respondent
had become illegible over time; the unavailability of
witnesses; the fact that it was not possible any longer to obtain
contemporaneous
statements from those who treated the respondent; and
the inability of those who may have treated her to remember what had
happened.
But counsel representing the Premier found herself unable
to point to any prejudice that had not already been suffered by 27
May
2003, the latest date on which the notice could have been given.
There was therefore no prejudice at all and that is the end of
the
enquiry on this point.
[24] In the circumstances, all three requirements set
out in s 3(4)(
b
)
have been satisfied and the applicant was entitled to condonation for
the late service on the Premier of the notice required by
the 2002
Act.
[25] The court a quo ordered the Premier to pay the
applicant's costs occasioned by the former's opposition to the
application.
Counsel on behalf of the Premier initially argued that
the applicant should have been ordered to pay the Premier's costs as,
it
was submitted, the applicant was seeking condonation and the
Premier's opposition was not unreasonable.
12
Ordinarily, in applications for condonation for
non-observance of court procedure, a litigant is obliged to seek the
indulgence
of the court whatever the attitude of the other side and
for that reason will have to pay the latter's costs if it does
oppose,
unless the opposition was unreasonable. I doubt that this is
the correct approach in matters such as the present, as an
application
for condonation under the 2002 Act has nothing to do with
non-observance of court procedure, but is for permission to enforce a
right, which permission may be granted within prescribed statutory
parameters; and such an application is (in terms of s 3(4))
only
necessary if the organ of state relies on a creditor's failure to
serve a notice.
13
In the circumstances there is much to be said for the
view that where an application for condonation in a case such as the
present
is opposed, costs should follow the result. It is not,
however, necessary to consider the question further as the Premier's
counsel,
when asked if the Premier really insisted on attempting to
obtain a costs order against a person such as the applicant in the
circumstances
of the present case, quite properly abandoned this part
of the appeal; and there is no cross-appeal by the respondent.
[26] The appeal is dismissed, with costs.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: Ms P Weyer SC (with her Ms N Bawa)
Instructed by The State Attorney, Cape Town
The State Attorney, Bloemfontein
RESPONDENTS: J Samer
Instructed by DSC Attorneys, Cape Town
Rosendorff Reitz Barry, Bloemfontein
1
Jacobs
v Kegopotsimang
1937 GWLD 43.
2
Greyling
v Administrator, Natal
1966 (2) SA 684
(D).
3
Family
Things and Succession
2 ed (1983) by H
J Erasmus, C G van der Merwe and A H van Wyk para 166 at 193.
4
9
ed (2007) general editor Francois du Bois at 208ff.
5
See
para 22 below.
6
Naylor
& another v Jansen
2007 (1) SA 18
(SCA) para 14 and cases
referred to therein in footnotes 16 to 23;
Malan & another v
Law Society, Northern Province
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 13.
7
Bookworks
(Pty) Ltd v Greater Johannesburg Transitonal Metropolitan Council &
another
1999 (4) SA 799
(W) at 807
in
fine
, approved in
Giddey
NO v J C Barnard & Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC) para 21.
8
Note
the transitional provisions in s 2(3) and (4), quoted above.
They are not of importance in the present matter, for the
reasons
appearing from the next paragraph of this judgment.
9
The
1970 Act was repealed in its entirety by s 2(1) of the 2002 Act,
read with the Schedule thereto, with effect from 28 November
2002.
10
'16(1)
[T]he provisions of this chapter shall, save in so far as they are
inconsistent with the provisions of any Act of Parliament
which
prescribes a specified period within which a claim is to be made or
an action is to be instituted in respect of a debt
or imposes
conditions on the institution of an action for the recovery of a
debt, apply to any debt arising after the commencement
of this Act.'
11
Para
11.
12
cf
Meintjies NO v Administrasieraad van
Sentraal-Transvaal
, above, at 288B-C
and 294G-295F;
Dauth & others v
Minister of Safety and Security & others
[2008] ZANCHC 26
;
2009
(1) SA 189
(NC) para 10.
13
Compare
s 17
of the
Prescription Act, which
provides:
'(1) A court shall not of its own motion take notice of
prescription.
(2)
A party to litigation who invokes prescription, shall do so in the
relevant document filed of record in the proceedings: Provided
that
a court may allow prescription to be raised at any stage of the
proceedings.'