About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2021
>>
[2021] ZAMPMBHC 21
|
|
T.L.M v MEC for Health: Mpumalanga (1674/2018) [2021] ZAMPMBHC 21 (28 June 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES
:NO
(3)
REVISED: YES
28/06/2021
CASE
NO: 1674/2018
In the matter
between:
T[….]
L[….] M[….]
Plaintiff
and
MEC
FOR HEALTH: MPUMALANGA
Defendant
J
U D G M E N T
MASHILE J:
[1]
This is an application for condonation as contemplated in Section
3(2)(a) of the
Institution of Legal Proceedings against certain Organs of State Act,
40 of 2002 (the Act”).
The Section lays down that where
a party wishes to sue an organ of State, the party concerned must,
within a period of six months
from the date on which the debt becomes
due, notify the organ of state of its intention to do so.
[2]
It is common cause that the Applicant has failed to comply with
Section 3(2)(a) of
the Act insofar as she did not alert the
Respondent within the prescribed period of her intention. However,
where an Applicant
has not observed the provisions of Section 3(2)(a)
of the Act, as is the case here, Section 3(4)(b) prescribes the
requirements
that must be met to enable a court seized with the
matter to condone the omission. This application is, as such, about
whether
or not the Applicant has demonstrated that she has satisfied
the condonation prerequisites prescribed in Section 3(4)(b) of the
Act.
FACTUAL MATRIX
[3]
Following confirmation that she was ‘with child’, the
Applicant adhered
to a rigorous pre-natal care and/or examinations
programme at LIKAZI COMMUNITY CLINIC (‘the Clinic”). The
objective
was to secure an incident free pregnancy that would in the
end lead to the ultimate safe delivery of her child.
[4]
The Applicant gave birth to a baby boy “(the minor child”)
on 12 May,2006
at ROB FERREIRA HOSPITAL [“the Hospital”].
The Applicant avers that the minor child was born with a brain damage
that
has rendered him severely and permanently disabled. The
Applicant maintains that the condition in which the minor child finds
himself
is due to the wrongful and negligent conduct of the Clinic
and/or the Hospital and/or or employees of the respective medical
institutions
during her pregnancy. This, she argues, occurred
immediately before birth and during the delivery process of the
minor child.
[5]
The Applicant further alleges that while she was an adult and a fully
grown lady by
the time she gave birth to the minor child, she was and
remains a semi-illiterate lay person who know nothing about
litigation
and related matters. In short, the Applicant claims that
she was oblivious of the steps on which to embark to sue the
Respondent
for the negligent act of the Clinic and/or the Hospital
and / or the employees of the respective institutions.
[6]
The Applicant says that it was only in early 2018 towards the end of
February while
talking to a friend and other unknown members of the
public when her attention was drawn to the fact that she could hold
the Respondent
liable for the loss suffered by the minor child. She
was further advised that in order to institute legal proceedings
against the
Respondent, she would require a thorough consultation
with an attorney to take her through the process henceforth. Sometime
lapsed
before she could see an attorney and this was due to lack of
money to pay for her transport to visit her attorneys.
[7]
Subsequent to the advice and obtaining transport money, the Applicant
arranged a
consultation with Mr Charles Dennis Mthobisi Mkhize, an
attorney practicing under the name and style of Charles
Mkhize
Attorneys. The earliest time on which she could consult
with the attorneys was on 14 April 2018. Once she had understood
how
the litigation process would commence and culminate, she instructed
her attorneys of record to assist her sue the Respondent
both
in her representative and personal capacities.
[8]
On 16 April 2018, Charles Mkhize Attorneys, her attorneys of record
,
sent the Section 3(2)(a) notice to the Respondent in Mbombela by
registered mail. It is not disputed that the notice does
not
comply with the provisions of Section 3(2)(a) of the Act insofar as
it was served outside of the prescribed six-month period.
That said,
the Applicant states that it nonetheless constitutes a lawful
notification to the Respondent that she would be initiating
legal
proceedings.
[9]
The Respondent neither acknowledged nor responded to the notice. In
the absence of
reply, the Applicant instituted an action (“the
main case”) for damages against the Respondent on 20
June 2018.
The sheriff served the founding papers upon the Respondent
on 27 June 2018 to which the Respondent answered by delivery of a
plea
comprising a special plea on 14 October 2018. The special plea
pertains to the Applicant’s lack of observance of the time
bar
prescribed in Section 3(2)(a) of the Act.
[10]
The Applicant attributes her failure to institute the action to sue
the Respondent on time to her ignorance
of the law and to the fact
that she is a semi-illiterate lay person. It was not motivated by
intentional or reckless disregard
of the legal consequences or a
disdain of the prescribed legal processes, she concludes.
[11]
The Respondent states that due to the inordinate lapse of time since
the occurrence, it could be difficult
to trace the medical records
relating to the minor child. Its application in terms of Uniform
Rule of Court 35(14) remains unanswered
by the Applicant to
date. As such, its endeavours to properly prepare to defend the main
action continue to be hampered.
ISSUES
[12]
The issues with which this Court ought to contend are mainly whether
or not the Applicant has
made a case for the Court to:
12.1
Condone her omission to serve the Notice upon the Respondent within 6
months of the
date of incident 12 May 2006;
12.2
Direct that the notice of 16 April 2018 served by the Applicant upon
the Respondent by registered mail on
19 April 2018 is proper and
sufficient as a notification to the Respondent indicating her
intention to institute legal proceedings;
12.3
Declare that the action instituted by the Applicant against the
Respondent on 20 June 2018 was validly and
properly instituted.
[13]
These issues can only be sufficiently 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. Since the
Applicant must comply with all
three requirements conjunctively,
failure to demonstrate that observance has been in respect of all
three of them will necessarily
result in a dismissal of the
condonation application.
LEGAL
FRAMEWORK
[14]
The Applicant’s application for condonation is premised on the
provisions of the Act. To this
extent, it will be useful to describe
the various provisions in the Act. The starting point should be
Section 3, which 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).”
[15]
Section 3(2) prescribes 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.”
[16]
Where an applicant has failed to comply with the provisions of
Section 3(2) of the Act and a respondent
raises such failure as a
special plea, as is the case here, an applicant may apply to court
with the necessary jurisdiction for
condonation. In this regard,
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.”
[17]
The introduction of the Act has seen a proliferation 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. In
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC)
at par 11, the Constitutional
Court recognising the significance of the time bar in the Act 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.”
[18]
A litigant ought to persuade a court of the three requirements laid
down in Section 3(4)(b) of the
Act. A court will not grant
condonation if it is not satisfied that all the three preconditions
described in Section 3(4)(b) have
been met. Thus, in
Minister
of Agriculture and Land Affairs v C J Rance (Pty) Ltd
2010
(4) SA 109
(SCA)
it was held that:
“
[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.”
See also
,
Madinda v Minister of Safety & Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA).
[19]
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. See,
Gumede v Road
Accident Fund
2007
(6) SA 304
(C).
This approach was endorsed by the Constitutional Court in the matter
of
Ferris v
FirstRand Bank Ltd
2014 (3) SA 39
(CC)
at 43 G-44A
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.
[20]
The 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 exercise circumspectly and judiciously. See,
Vlok
NO v Sun International South Africa Ltd
2014
(1) SA 487
(GSJ)
EVALUATION
HAS
PRESCRIPTION EXTINGUISHED THE DEBTS
[21]
The Applicant contends in this regard that prescription is not a
factor with which the Court should
concern itself. This, she argues,
is for two reasons. Firstly, prescription does not run against
a minor until 12 months
following the year on which the minor will
have attained majority age. Secondly, the minor child is brain
damaged as such, prescription
cannot run against him because of his
mental status. Either the one or the other, if established, will be
adequate to interrupt
prescription.
[22]
To amplify the issue pertaining to the minority status of the minor
child. The minor child was only
13 at the time when the Applicant
instituted his action in 2018. Accordingly, and quite evidently, his
claim against the Respondent
had not prescribed at the time when the
action was instituted. For what it is worth, perhaps I should point
out that since prescription
for the claim of the minor is not an
issue,
this case differs
from the Constitutional Court case of
Mtokonya
v Minister of Police
[2017]
ZACC 33
.
The court held that in terms of
Section 12(3)
of the
Prescription
Act, 68 of 1969
knowledge that an applicant has a legal remedy is not
required but knowledge of the identity of a respondent and facts
giving rise
to a claim remain necessary to show.
[23]
The Applicant asserts further that even if the minor child’s
claim had prescribed by the time
of the institution of the claim
because of attainment of majority status, the claim would still not
have prescribed. This would
have been so because in terms of the
Prescription Act, 68 of 1969
, prescription does not run against a
mentally incapacitated person. In consequence of the conclusion of
this Court that the claim
has not prescribed due to the minority
status of the minor child, it will be gratuitous to traverse mental
incapacitation of the
minor child.
[24]
Although the Respondent contests the argument that the debt has not
prescribed, it seems nonetheless
not keen to take the matter further
in that he believed that it is not only prescription of the debt that
presents a hurdle for
the claim of the minor child. In this regard,
it believes that the Applicant’s explanation on good cause and
the prejudice
to be suffered by the Respondent is not satisfactory.
As such, the court should dismiss the application on the basis of
inadequacy
of information on good cause and prejudice to be suffered
by the Respondent.
[25]
On the contrary, it is apparent from the evidence before court that
there is no difference of opinion
that the personal debt of the
Applicant has prescribed. For that reason and save to mention that
the personal debt of the Applicant
prescribed three years following
the incident on 12 May 2006, it is unnecessary to elaborate or to
delve into the subject beyond
what I have set out above.
GOOD CAUSE
[26]
In the case of Gumede
supra
it was stated that in deciding
good cause, a court has a wide discretion, which it must exercise
judiciously with due regard to
all the facts surrounding the case.
the Court made reference to the case of Farris
supra
where it
was held that ultimately the test for good cause is the interest of
justice. Factors generally used to determine interest
of justice are
the existence of prospects of success and the importance of the case
to be decided.
[27]
With the above in mind, the starting point here should be Section
3(3)(a) of the Act and case authority.
For that matter, it might be
beneficial for referring back to the provisions of the Section once
again:
“
(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….”
[28]
Against the background of the provisions of that Section, the natural
questions to pose are:
28.1
When did the Applicant acquire knowledge of the identity of the
Respondent and the facts that gave rise to
the minor’s claim?
2.8.2
Having regard to the facts of this matter, could the Applicant be
regarded as having acquired knowledge
of the identity of
the Respondent and the facts that gave rise to the minor’s
claim as soon as she could have by exercising
reasonable care?
28.3
Did the Respondent knowingly prevent her from acquiring such
knowledge?
[29]
To turn then to the first question. It is apparent that the Applicant
acquired knowledge of the identity
of the clinic as well as the
Hospital as soon as she attended clinic before birth and upon
admission respectively. She alleges
that she was ignorant of the law,
which means that even if she had knowledge of the Hospital, she would
not have known firstly,
the identity of the Respondent before court
and secondly, that the Respondent would be vicariously liable for the
actions of the
Hospital until she obtained legal advice.
[30]
That said, acquisition of the knowledge of identity of the Hospital
in late February 2018 as the treating
health institution that might
have been responsible for the state of health of the minor child
certainly set matters in motion.
This is what took her to her current
attorneys of record in 2018 and matters have been unfolding since
then. Thus, her knowledge
of the identity of the treating hospital
cannot, without the advice of her attorneys of record, be stretched
beyond to encompass
the identity of the Respondent before court. Mere
knowledge of the identity of the treating health institution without
concomitant
information of a party vicariously liable for the claim
cannot assist a respondent to avoid a valid and genuine claim by an
applicant.
[31]
This Court readily acknowledges that the period that lapsed between
the occurrence in 2006 and 2018
is exceedingly long. The issue,
however, is whether or not it is reasonable having regard to the
semi-illiteracy and social background
allegations of the Applicant.
There are no counter allegations of her social background that she
grew up in a rural township nor
is there one against her
semi-illiteracy. Her allegations, outlandish as they sound, are
common across townships and rural areas
of South Africa.
[32]
Accordingly, this Court must not be too quick to judge for doing so
might be perceived as discrimination
and deprivation of deserving
claimants on the basis of their ignorance in favour of what might be
exclusive to the urbanites and
somewhat educated. Given her
situation, I accept that she only acquired knowledge of the identity
of the Respondent and the facts
that gave rise to the claim following
her consultation with her attorneys of record in 2018.
[33]
I cannot demand of her to have known that the medical personnel at
the hospital were responsible for
the state of health of the minor
child. Even assuming that she was aware of the facts, key is knowing
that the Respondent would
be liable for compensation. Again, the
objective of the Act could not have been that mere knowledge of the
facts without knowledge
of utility of those facts at one’s
disposal would tick the box. As will be seen below, other than the
Respondent slating
her for lack of supporting evidence for certain
evidence, there is no evidence of the kind of reasonable care that
she could have
exercised to acquire knowledge of the identity of the
Respondent and facts that gave rise to the claim
[34]
I am mindful of the criticism of the Applicant by the Respondent that
she has made unsupported allegations.
For example, the Respondent
points out that the Applicant’s assertion that she was in the
company of a friend when she was
advised that the hospital could be
liable to compensate the minor child for his state of health is not
buttressed by any evidence.
While I acknowledge this fact and that
there is no proper explanation for the omission to include such
evidence, I do not think
that given the alleged state of health of
the child, the Court should frustrate endeavours to have the matter
proceed to a trial
stage where most of the issues will be ventilated
anyway.
[35]
In any event, the Court exercises a wide discretion taking into
consideration prospects of success
and the importance of the case. I
note the criticism of the Respondent that lack of medical records
and/or expert reports necessarily
diminishes the prospects of success
of the minor child’s claim. Here the question is, has the
Applicant made a
prima facie
case for the claim of the minor
child? The answer ought to be in the affirmative.
[36]
The Applicant has made reference to certain technical medical terms
suggesting that the minor child
indeed suffered a massive brain
injury. This is not denied. Instead, the Respondent has asked this
Court to draw a negative inference
from the Applicant’s refusal
to provide medical records and/or expert reports. It must be borne in
mind that this is a condonation
application where an allegation such
as the brain damage of the minor child should suffice especially in
the absence of direct
denial of the allegation.
[37]
Apart from the aforegoing, the Respondent must be reminded that it
will still have opportunity to request
the medical records from the
Applicant prior to the commencement of the trial in the main case.
Demanding production of medical
records and/or experts medical
reports at condonation stage blurs the line between condonation and
trial. The two are discrete
each with different hurdles to overcome
prior to proceeding to the next stage. The point is simply this –
if the Applicant,
having been afforded a chance to proceed to trial,
fails to demonstrate before the trial court that the minor child is
entitled
to compensation, the claim will be dismissed.
[38]
This Court should not be misconstrued to mean that the prospects of
success are minimal. At this stage
the minor child allegedly has
suffered a brain damage as a
result of the hospital
personnel, which attracts vicarious liability
to the Respondent. The Applicant should be given opportunity to
present the claim
of the minor child before a trial court. In my
opinion, it is in the interest of justice that the Applicant be
allowed to present
the claim of the minor before a trial court in the
main case.
[39]
In reaching this conclusion, I am acutely mindful of the judgment of
this Division per Kgoele J in
the matter of
N
Z
on behalf of
S Z v
MEC for Health and Social Development: Mpumalanga,
Case No: 1572/2017
where
she dismissed the claim on the basis that prospects of success were
minimal. The Court in the
N Z
case was provided with medical records and experts reports and could
therefore decide whether or not prospects of success were
present.
[40]
The above is not the case here. The Applicant
in casu
has
provided the bare minimum but sufficient to enable her to be elevated
to trial. Had this Court been furnished with similar
information, it
probably would have been forced to assess the merits of the main case
to determine whether it would be in the interest
of justice to burden
the trial court with a case whose prospects of success were
stillborn. The two cases are as such radically
different. Any
attempts to treat them analogously ought to be discouraged.
[41]
Lastly, the issue is whether or not the Respondent has suffered any
prejudice as a result of the Applicant’s
late service of the
Section 3 notice. This aspect need not detain this Court for long.
The Respondent has referred this court to
the matter of Mohlomi
supra
where the Constitutional Court set out instances where inordinate
delays in the institution of these kind of actions might cause
prejudice to a respondent. Some of these are that ‘inordinate
delays 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.’
[42]
As pointed out by the Applicant, none of the prejudices referred to
in the Mohlomi case
supra
form part of the Respondent’s
argument on prejudice albeit that it is canvased at length in its
heads. In any event, it is
manifest that the Respondent cannot claim
to have suffered any prejudice in circumstances where it is before
court defending the
matter and it is not part of its case that
witnesses are no longer available or that those who are, their
memories have faded or
that documentary evidence on which it is
required to rely is not available anymore. All the factors referred
to in Mohlomi are
not raised as part of the Respondent’s
defence. In the circumstances, I am compelled to conclude that there
is no prejudice
to the Respondent.
CONCLUSION
[43]
I am satisfied that the Applicant has persuaded this Court that the
conditions laid down in Section
3(4)(b) of the Act have been observed
and complied with. In the result, her condonation application in
respect of the minor child
must succeed and I make the following
order:
1.
The Applicant’s
failure to serve the notice referred to in Section 3(2)(a) of the Act
upon the Respondent within six months
of the date of the occurrence
of the debt is condoned;
2.
The notice dated 16
April 2018 served on the Respondent by registered mail on 19 April
2018 is proper and sufficient notice to the
Respondent of the
Applicant’s intention to institute legal proceedings against
the Respondent;
3.
The action instituted
by the Applicant against the Respondent on 20 June 2018 under Case
Number 1674 / 2018 was validly instituted
and stands; and
4.
The costs of this
application shall be in the action.
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 28 June 2021 at 10:00.
APPEARANCES:
Counsel for the
Applicant:
Adv L P Mkize
Instructed
by:
Charles Mkize Attorneys
Counsel for the
Respondent:
Adv H Van Eeden SC
Instructed
by:
Adendorff Theron Inc
Date of
Hearing:
8 December 2020
Date
of Judgment:
28 June 2021