About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2022
>>
[2022] ZAECMHC 14
|
|
Zulu obo Lelethu Zulu v MEC for Health Eastern Cape Province (5147/2018) [2022] ZAECMHC 14 (17 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 5147/2018
In
the matter between:
ZENANDE
ZULU OBO LELETHU
ZULU
Applicant
And
M
E C FOR HEALTH EASTERN
CAPE
PROVINCE
Respondent
JUDGMENT
TOKOTA
J
[1]
The applicant instituted a damages’ claim against the
respondent allegedly arising
out of medical negligence of his
employees acting within the course and scope of their employment. The
respondent raised a special
plea that the applicant is time barred in
that she has failed to comply with the provisions of section 3 of the
Institution of
Legal Proceedings Against Certain Organs of State Act
No. 40 of 2002 (the Act). This application concerns condonation for
failure
to comply with section 3(4)(b) of the Act. At the hearing of
the matter Mr
Dwayi a
ppeared for the respondent and I allowed
him to hand up his heads of argument.
Factual
background
[2]
On 25 April 2016 the applicant delivered a baby boy at Mthatha
General Hospital, Eastern
Cape.
[3]
The child did not cry when it was born. It later transpired that the
child suffered
from cerebral palsy. The child died on 29 April 2018.
The death certificate records that it died of natural causes.
[4]
On 1 October 2018 the applicant issued summons against the respondent
claiming damages
in the amount of R500 000.00(five hundred thousand
rand) in her representative capacity and R2 million (two million
rand) in her
personal capacity.
[5]
On 7 March 2019 the respondent delivered a plea and raised a special
plea that the
applicant is time barred by reason of having failed to
comply with section 3 of the Act in that she failed to give notice in
writing
of her intention to institute the legal proceedings in
question, against the State and that the State did not consent in
writing
to the institution of such legal proceedings. This prompted
the present application.
[6]
The applicant has stated that she is semi-literate having passed
grade 10. She stated
that she was therefore unaware that she had a
civil claim against the respondent. She explains that during August
2016 she was
advised by a co-patient at the hospital that she should
contact Nkele attorneys to institute a claim for medical negligence
against
the State.
[7]
On 18 October 2016 she consulted with Mr Nkele of T A Nkele
attorneys. Mr Nkele advised
her that in his opinion she had a claim
for medical negligence against the State as the nursing staff were
negligent in caring
for her during her labour and delivery causing
the brain damage of her child. She immediately instructed Mr Nkele to
proceed and
pursue her claim against the respondent. She subsequently
consulted with a specialist one Dr Pohl who also confirmed that she
had
a claim against the respondent.
[8]
On 31 July 2018 Mr Nkele gave notice to the respondent of the
intention to institute
legal proceedings.
[9]
In terms of section 3 of the Act she had to give notice of intended
action within
six months of becoming aware of the existence of her
cause of action or within such period by which she could have
acquired knowledge
by the exercise of reasonable care. The six month
period expired in April 2017.
[10]
The applicant submits that she only became aware that she had a claim
against the respondent
on 6 February 2018.
[11]
The applicant cannot be correct when she says she only became aware
of the existence of the cause
of action against the respondent in
February 2018. From her own version, as far back as August 2016 a
co-patient advised her that
she had a claim against the State and
that she should consult with attorneys to confirm. Furthermore, on 18
October 2016 Mr Nkele
advised her that the nursing staff were
negligent in handling her baby delivery and that she had a civil
claim for damages against
the respondent.
[12]
The facts giving rise to her claim arose on 25 April 2016. She became
aware that she could institute
a medical negligence claim on 18
October 2016. It took the applicant one year nine months after she
gained legal opinion that she
was entitled to claim against the
respondent before a notice was issued.
[13]
In terms of section 3 of the Act
“
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).
(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
......
(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
…
[14]
Subject to the provisions of section 3(4) of the Act, if the creditor
fails to serve the notice
within six months from the date on which
the debt became due she is precluded from instituting legal
proceedings against an organ
of State. The debt becomes due when the
creditor gains knowledge of the facts giving rise to a debt and of
the identity of the
debtor, or from the date on which she must be
regarded as having acquired knowledge thereof by reason of exercising
reasonable
care.
[15]
The question to be determined is whether the applicant’s
failure to serve the notice in
terms of section 3 of the Act
timeously should be condoned or not. In this regard it must be
determined whether or not the applicant
was aware of the facts giving
rise to the claim and the identity of the creditor or by exercising
reasonable care she could have
acquired such knowledge before the
expiry of the six months’ period. In order for the court to
exercise its discretion in
favour of granting condonation a
reasonable explanation must be given for the delay regard being had
to the requirements of section
3 (4)(b) of the Act.
[16]
It is inconceivable that the applicant could not have known the facts
giving rise to her cause
of action or the identity of her creditor
within the six months’ period prescribed by the Act. The
applicant contends that
she is not
au
fait
with the law. This contention flies in the face of the legal advice
she obtained on 18 October 2016 from her lawyer. In considering
the
equities, some weight must be accorded, in the absence of any such
explanation, to the
maxim
vigilantibus non dormientibus jura subveniunt.
“A man whose allegedly legal interests are threatened should be
vigilant in protecting them.”
[1]
He/she is not entitled to expect others to protect them for him/her.
The law comes to the aid of those who are alert to protect
their
rights and not those who slumber.
[17]
If the applicant has failed to comply with section 3(2) of the Act,
subject to good cause being
shown, the court still has a discretion
to condone such failure.
[2]
[18]
As to the first requirement of section 3(4)(b) of the Act the
statutory prescription period is
three years. In this case the debt
became due in January 2016. The summons was served in November 2018.
Therefore, the claim had
not prescribed by then.
[19]
As to the second requirement, the applicant says that she is a
layperson in legal matters. Consequently,
she did not know if she had
a civil claim against the respondent. It has been held
[3]
that considering this leg 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.
[20]
The applicant has not addressed the question of the prospects of
success except to say that she
has ‘reasonable prospects of
success’ without elaborating on that. She has referred to an
expert report which she did
not attach to the application. The court
remains in the dark as to how she came to the conclusion that she has
prospects of success.
Under this head she states that she was not
aware that she had a claim against the respondent until she consulted
with her attorney.
[21]
Knowledge of the facts giving rise to the cause of action has been
defined in
McKenzie v Farmers' Co-operative Meat Industries
Ltd
1922 AD
1
6.
as
'every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to 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]
[22]
There is a further problem and that is that without a reasonable and
acceptable explanation for
the delay, the prospects of success are
immaterial, and without prospects of success, no matter how good the
explanation for the
delay, an application for condonation should be
refused: c.f.
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 765A-C;
NUM a. o. v Western Holdings Gold Mine
(1994)
15 ILJ 610 (LAC) at 613E.
[23]
Where the delay is attributable to a litigant’s legal
representative’s negligence
the courts have been reluctant to
penalise a litigant on account of the conduct of his/her
representative but have emphasised that
there is a limit beyond which
a litigant cannot escape the results of his representatives’
lack of diligence or the insufficiency
of the explanation tendered.
Saloojee a o v Minister of Community Development
1965 (2) SA
135
(A) at 140H-141D;
Buthelezi a o v Eclipse Foundries Ltd
(1997) 18 ILJ 633 (A) at 638I-639A.
[24]
The explanation given for the delay is fraught with unexplained gaps.
In this regard the applicant
was informed in August 2016 by a
co-patient that she had a case but should go and confirm with
lawyers. She waited until October
2016 when she met with her
attorneys. There is no explanation as to what she was doing in
September 2016 till 18 October 2016.
Again her attorney confirmed
that on the facts she related to him she had a civil claim against
the State.
[25]
The notice in terms of the Act was given on 31 July 2018. There is no
explanation what the applicant
or the attorney was doing for the year
and nine months before the notice was given.
[26]
When an applicant seeks condonation for the delay, a full explanation
that covers the 'entire
period' must be provided.
[5]
Failure to fill up the gaps mentioned above falls short of showing a
good cause. Knowledge of the existence of a claim is a conclusion
of
law and affords no excusable ground for the delay.
[27]
In
Mohlomi v Minister of Defence
1997 (1) SA 124
(CC)
(1996
(12) BCLR 1559
;
[1996] ZACC 20)
it was stated:
“
[11
]
Rules that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays
in litigating damage the interests 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.”
[6]
[28]
In
Louw v Mining Commissioner, Johannesburg
(1896) 3 OR 190
at 200
it was said that the purpose of the delay rule was to bar a party who
wished to '
drag a cow long dead out of a ditch'
. See too
Baxter Administrative Law (Juta, 1984) at 715.
[29]
In
Road Accident Fund and Another v Mdeyide
2011 (2) SA
26
(CC)
(2011 (1) BCLR 1
;
[2010] ZACC 18):
[8]
it was said:
‘
This court has
repeatedly emphasised the vital role time limits play in bringing
certainty and stability to social and legal affairs,
and maintaining
the quality of adjudication. Without prescription periods, legal
disputes would have the potential to be drawn
out for indefinite
periods of time, bringing about prolonged uncertainty to the parties
to the dispute. The quality of adjudication
by courts is likely to
suffer as time passes, because evidence may have become lost,
witnesses may no longer be available to testify,
or their
recollection of events may have faded. The quality of adjudication is
central to the rule of law. For the law to be respected,
decisions of
courts must be given as soon as possible after the events giving rise
to disputes, and must follow from sound reasoning,
based on the best
available evidence.'
[30]
The wording of section 3(3)(a) of the Act is, with minor deviations,
similar to
section 12(3)
of the
Prescription Act No 68 of 1969
.
Therefore, cases which interpreted
section 12(3)
are relevant for the
consideration of section 3(3)(a) of the Act.
[31]
In my view the applicant’s case collapses on the first
requirement of s.3 (4) of the Act.
I conclude that the applicant had
knowledge of the bare minimum facts which gave rise to a cause of
action when she was told by
a co-patient at the hospital and Mr Nkele
in October 2016
[7]
The delay for
one year nine months has not been explained.
[32]
Section 3 of the Act provides that knowledge of the existence of a
debt begins when a person
acquires knowledge of the material facts
from which the debt arises. The notice period begins to run during
that period. It does
not require knowledge of the relevant legal
conclusions.
[8]
Such
period is not postponed until the creditor has knowledge of the
existence of a civil claim against the debtor. The applicant
in any
event knew the existence of her claim and the identity of the debtor
in October 2016 when her attorney advised her that
the nursing staff
were negligent in handling her delivery of her baby. I reject the
submission that she became aware in February
2018. I therefore find
that no good cause has been shown for the delay.
[33]
The prejudice referred to in section 3(4)(b)(iii) of the Act must now
be examined. I can do no
better than to refer to the dicta of
Mohlomi
[9]
and
Mdeyide
[10]
quoted above. Time limit has a legitimate government purpose. When
dealing with the global assessment of the delay, the absence
of
prejudice is a relevant consideration before a court can exercise its
discretion. I refer here to both forms of delay, viz delay
until the
lapsing of the time bar and delay after becoming aware of the need to
give notice. In assessing whether unreasonable
delay should be
overlooked in the context of other discretionary remedies (
inter
alia,
in pre-constitutional common-law review), our courts always had
regard to whether the other party had been prejudiced by the delay.
Prejudice is inherent in every case where there has been an
unreasonable delay. Witnesses may have resigned or died by the time
the matter comes to court, documentary evidence may have dissipated.
[34]
On the facts of this case unlike the case of Madinda,
[11]
where
the delay was five and half months the delay in the present matter
was substantial and lacked a satisfactory explanation thereof.
There
was no effort by any of the parties to address this leg. The
applicant simply submitted that the respondent would not be
prejudiced by the application. The respondent simply denied the
submission. In my view the application must fail.
[35]
The general rule is that costs will follow the results. I see no
reason in this case why that
rule should not apply.
[35]
In the result the following order will issue.
1.
The application for condonation for the late service of the notice in
terms of section 3 (4)(2)(b) of Act 40 of 2002 is
dismissed with costs.
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant:
E M Matanda
Instructed
by
Nkele & Sons Inc.
For
the respondent:
N T Dwayi
Instructed
by
Smith Tabata Attorneys
Date
of Hearing:
5 May 2022.
Date
of Delivery:
17 May 2022.
[1]
Cape Town Municipality v Abdulla
1974 (4) SA 428
(C) at 438
[2]
3(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.
[3]
Madinda
v Minister of Safety and Security, Republic of South Africa (153/07)
[2008] ZASCA 34
;
[2008] 3 All SA 143
(SCA);
2008 (4) SA 312
(SCA)
(28 March 2008) para.10
[4]
See also Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme
Corp
2020 (1) SA 327
(CC) paras.53-54 and cases referred
therein
[5]
Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre
as Amicus Curiae)
2008 (2) SA 472
(CC)
(2008 (4) BCLR 442
;
[2007] ZACC 24)
para 22;. Dept of Transport v Tasima (Pty) Ltd
2017
(2) SA 622
(CC)
(2017 (1) BCLR 1
;
[2016] ZACC 39)
[6]
See also Road Accident Fund and Another v Mdeyide
2011 (2) SA
26
(CC)
(2011 (1) BCLR 1
;
[2010] ZACC 18)
(Mdeyide) para 8.
[7]
Minister of Finance v Gore NO
2007 (1) SA 111
(SCA) ([2007]
1
All SA 309
;
[2006] ZASCA 98)
para.17;
[8]
Mtokonya
v Minister of Police
2018 (5) SA 22
(CC)
(2017 (11) BCLR 1443
;
[2017] ZACC 33)
para.51 and cases referred to therein.
[9]
Para.28 supra.
[10]
Para. 30 supra.
[11]
Footnote 4 supra