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[2021] ZAFSHC 8
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Willemse v Minister for Health, Free State Province (A17/2020) [2021] ZAFSHC 8 (21 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal:
A43/2020
In
the matter between:
JEAN
WILLEMSE
Appellant
And
THE
MINISTER FOR HEALTH,
Respondent
FREE
STATE PROVINCE
CORAM:
MUSI, JP
et
DANISO,
J
et
NEKOSIE, AJ
HEARD
ON:
02 NOVEMBER 2020
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
21
JANUARY 2021
[1]
This is an appeal against the judgment and order of Morobane J
delivered on 20 June
2019 in which he dismissed the appellant’s
application
in
terms of s 3(4) of the Institution of Legal Proceedings against
certain Organs of State Act
[1]
with
costs. The appeal is with the leave of the court
a
quo
.
[2]
On 03 August 2018 the appellant
instituted a claim against the respondent for damages arising
out of
negligent medical treatment by the respondent’s servants
(nurses and/or medical doctors) at Metsimaholo, Boitumelo
and/or
Pelonomi hospitals where he was admitted after he sustained severe
lacerations to his right arm caused by a slip. The incident
occurred
on 24 October 2016 and due to the severity of the injury he was
admitted at Metsimaholo hospital. On the next day he was
transferred
to Boitumelo hospital. The ambulance that was transporting him to
Boitumelo hospital ran out of petrol along the way.
The appellant lay
in the stranded ambulance for three hours before it was refuelled.
[3]
On arrival at Boitumelo hospital he was left unattended for a
considerable time. He
was later admitted for the night. The next day,
he was transferred to Pelonomi hospital where his arm was amputated
below the elbow.
The appellant was informed by the attending doctor
that the amputation was occasioned by the two-day delay in receiving
the appropriate
medical treatment. He was discharged, from Pelonomi
hospital, on 28 October 2016.
[4]
The respondent defended the action. In its belated plea,
[2]
the respondent raised a special plea objecting to the appellant’s
failure to serve it with a written notice of its intention
to
institute legal proceedings within the time period prescribed by s
3(2).
[5]
Section 3(1)(a), (b) and 3(2)(a) of the Act provides that no legal
proceedings for
the recovery of a debt may be instituted against an
organ of state unless the creditor has given the organ of state in
question
a written notice of his/her intention to sue it within six
months from the date the debt became due, unless the organ of state
has consented in writing to the institution of the legal
proceeding(s) without such notice.
[6]
It was common cause that the respondent is an organ of state as
envisaged in s 1 of
the Act. The appellant was accordingly subject to
the provisions of s 3(1) and 3(2). The debt which forms the basis of
the appellant’s
claim became due on 26 October 2016. The
appellant’s notice was only served on the respondent on 15 May
2018,
[3]
approximately eighteen
months after the date on which the debt became due.
[7]
Pursuant to the respondent’s objection, the appellant launched
an application
before Morobane J seeking condonation for his failure
to serve the notice within the prescribed time. The application was
opposed
by the respondent on the basis that the appellant had failed
to show that good cause existed for the delay. The respondent further
averred that the delay was not sufficiently explained and that the
appellant did not make any allegation to the effect that new
information was provided to him other than the information he had
received from the doctor at the hospital. Lastly, the respondent
alleged that the prospects of success in the proposed action were not
good. The court
a quo
agreed with the respondent and refused
condonation.
[8]
The appellant is aggrieved by the whole judgment and order of the
court
a quo
.
[9]
The appellant’s seven grounds of his appeal are embodied in his
notice of appeal,
I therefore deem it unnecessary to rehash them
verbatim except to refer to the relevant parts thereof for the
purpose of this judgment.
[10]
It is trite law that if condonation, for lack of compliance with the
provisions of a statute,
is refused by a court, the appeal court is
entitled 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.
(Premier, Western Cape v Lakay
2012 (2) SA 1
(SCA)
) at
paragraph 14.
[11]
I
n
terms of section 3(4)(b) of the Act the court may condone the failure
to serve a section 3 notice if it is satisfied that:
11.1.
The debt which forms the basis of the creditor’s claim has not
prescribed;
11.2.
Good cause exists for the failure to serve the notice timeously; and
11.3.
The organ of state was not unreasonably prejudiced by the failure to
serve the notice timeously.
[12]
The
discretion
to grant or refuse condonation is exercised judicially by having
regard to various factors such as
the
degree of lateness, the explanation of the delay, the prospects
of success in the proposed action, the appellant’s
interest in
progressing the matter and the avoidance of unnecessary delay in the
administration of justice. These factors are not
individually
decisive but are interrelated. They must be weighed one against
the other; thus a slight delay and a good explanation
may help to
compensate for prospects of success which are not strong or, strong
merits may mitigate fault. See United Plant Hire
(Pty) Ltd v Hills
and others
1976
(1) SA 717
(A)
page 720 para E-G quoted with approval in Madinda v Minister of
Safety and Security
[2008] ZASCA 34
;
[2008]
3 All SA 143
(SCA)
at paras 12 and
16.
[13]
It is trite law that the phrase “
if
the court is satisfied
”
does not require proof on a balance of probabilities
“
rather
it is the
overall
impression made on a court which brings a fair mind to the facts set
up by the parties.
”
[4]
[14]
In this matter the appellant’s claim had not prescribed,
accordingly, what remained to
be determined by the court
a
quo
was whether
the appellant had shown that good cause existed for his failure to
serve the notice within the stipulated time and
that the respondent
was not unreasonably prejudiced by the late notice.
[15]
Heher JA held that good cause involves “
all
those factors which bear on the fairness of granting the relief as
between the parties and as affecting the proper administration
of
justice. These factors 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
.”
[5]
[16]
The appellant’s reasons for the delay in serving the notice
were set out in his founding
affidavit and replication.
[6]
He averred that after he was discharged from hospital he was
traumatized by the loss of his arm which, in turn, adversely affected
his work as he could no longer do his work as a boiler maker
efficiently with one arm. The inability to work as before the
incident
caused him financial strain as a result he could not
instruct an attorney to assist with his claim. He was unaware that he
could
obtain legal assistance on a contingency fee agreement until he
consulted with his attorneys of record on 26 February 2018.
[17]
He is a layperson thus he only became aware of the statutory
requirement of giving a six-month
notice before legal proceedings
could be instituted against an organ of state when he consulted his
attorney. The delay was further
exacerbated by the struggle
encountered by his attorneys when they set about to obtain the
hospitals’ medical records in
order investigate the veracity of
the claim. The hospitals’ names had changed.
[18]
It was the appellant’s contention that the respondent was not
prejudiced by the late notice
as the claim had not prescribed. The
medical records were still available and furnished to the respondent
to enable it to acquaint
itself with the merits of the claim.
[19]
It was argued by counsel for the appellant that the Metsimaholo
hospital had determined that
the appellant’s injury was so
severe it required specialist care. It was on that basis that he was
transferred to Boitumelo
hospital. The appellant was instead left
stranded in the ambulance for three hours without receiving the
required medical attention.
Upon reaching Boitumelo, he was left
unattended for some hours. On the next day, he was transferred to
Pelonomi hospital where
he was ultimately informed by the attending
doctor that the arm had to be amputated due to the lack of
appropriate medical treatment.
All these factors are indicative of
prima facie negligence on the part of the respondent’s
employees.
[20]
It was submitted by appellant’s counsel that the appellant’s
explanation that the
delay in serving the notice was occasioned by a
lack of knowledge of the law and the financial means to appoint an
attorney is
a valid explanation. The appellant was honest in his
explanation he did not manufacture a version in order to obtain the
order
he sought. No unreasonable prejudice was proffered by the
respondent.
[21]
Counsel for the respondent was adamant that the court a quo was
correct in its conclusion that
no good cause was shown by the
appellant. With regard to the merits of the matter, it was contended
that the appellant injured
himself when he smashed his arm against a
windowpane in a fit of rage. It is therefore incomprehensible how a
person who engaged
in such a reckless conduct can expect compensation
from the respondent.
[22]
The appellant failed to explain fully and reasonably the delay in
order to enable the court a
quo to interrogate the cogency of his
ineptitude. By October 2016 the appellant was aware or ought to have
been aware that he had
a claim against the respondent but failed to
seek legal advice immediately or shortly after he was discharged from
the hospital.
[23]
The appellant only consulted an attorney on 28 February 2018
approximately 18 months after he
was informed by the doctor that the
amputation of his arm was as a result of lack of appropriate medical
care. There is also
an unexplained delay of over a month after
the appellant had sought legal advice till the date on which the
notice was ultimately
delivered. There is also no allegation that new
information came to light other than what was relayed to him by the
doctor in 2016.
Being a lay person is of no consequence as ignorance
of the law is no excuse for failing to serve the notice.
[24]
The failure to comply with the statutory requirements is prejudicial
to the respondent as it
is responsible for the administration of all
the hospitals in the Province. Medical records do get misplaced.
Hospital employees
leave their posts or move to the private sector in
other provinces or even abroad. The longer it takes to institute a
claim chances
are greater that the employees who were primarily
involved would have left the institution. It is generally difficult
to trace
former employees. The specific doctor the appellant has
referred to might have moved on.
[7]
[25]
On the facts germane to this matter, I’m satisfied that the
merits are
in
favour of the
appellant. Except for the bare denial of negligence and to merely
aver that the injury sustained by the appellant was self- inflicted
the respondent’s plea is silent over the appellant’s
allegations that he missed out on appropriate treatment for at
least
3 hours when the ambulance stalled on the way to Boitumelo hospital
and that when he ultimately reached Boitumelo hospital
he was left
unattended for a considerable period of time. It is also not gainsaid
that on the next morning after having bled profusely
the doctor
informed him that the only option was for the arm to be amputated.
How the injury occurred or the cause therefore is
irrelevant under
these circumstances.
All
these factors
viewed
conjunctively
impute
negligence on the respondent’s servants.
[26]
The delay is indeed extreme.
In
casu
t
here
is nothing peculiar about the appellant’s reasons for the delay
before consulting an attorney. It was not in dispute
that as a result
of the incident he lost a limb which affected how he performed his
work. Understandably that would have an adverse
impact on his
finances which in turn resulted in lack of funds to appoint an
attorney.
[27]
With regard to the delay after consulting an attorney it was also
undisputed that the litigation
materialized as a result of a
contingency fee agreement that the appellant concluded with his
attorney. In contingency fee agreements
the attorney only earns his
/her fee from the award upon the successful conclusion of the matter
“no win no pay.” It
therefore makes sense for the
attorney to first investigate the veracity of the claim and satisfy
him/herself that there are reasonable
prospects that the claim may be
successful
[8]
before embarking
on a costly litigation which largely includes costs for experts,
medical consultations and of obtaining medical
reports.
[28]
Having regard to these factors, I find that the delay occasioned by
the lack of financial means
and of the knowledge of the law does not
constitute ineptitude behaviour. The reasons are valid and
satisfactory.
[29]
The court a quo took issue with the fact that no affidavit was filed
by the appellant’s
attorney to explain the delay after the
consultation on 28 February 2018 to the date the notice was
ultimately served on 15 May
2020. The subsequent delay in bringing
the condonation application has no bearing on the determination of
good cause. It is the
delay in serving the notice that is relevant.
See Madinda at paragraph 14. The appellant is the litigant in this
matter. His affidavit
filed in support of the condonation application
gave a
full,
detailed and accurate explanation for the period of the delay. His
affidavit
was
sufficient.
[30]
With regard to the last requirement,
it
was accepted that
the
duty was on the appellant to show that respondent was not
unreasonably prejudiced by the late notice. On the available facts,
despite the
late notice the respondent was able to gather the facts giving rise
to the debt. The respondent was able to carry
out its own
investigation with regard to when and under what circumstances the
appellant was treated. The respondent is also seized
with the
knowledge of the chronology of the events from the time the appellant
was admitted, transferred to other hospitals and
later discharged.
The respondent has also been able to plead to the appellant’s
summons.
[31]
All
that the respondent had to do, was to lay a basis for unreasonable
prejudice but instead the respondent made generic averments
namely
that: medical records do get lost; the
hospital
employees do not stay long at the hospitals; and it’s generally
quite difficult to trace them as they often emigrate
or move to other
provinces and the attending doctor might have moved.
These
are not
facts
pertinent to this matter but speculation. It can therefore not be
said that the respondent was unreasonably prejudiced by
the late
notice.
[32]
Section 3 is premised on the tenets of fairness and equity. The
appellant is a bona fide litigant
with good merits which he clearly
intends on having them tried by a court of law hence he even
consented to the late filing of
the respondent’s plea. No
unreasonable prejudice has been proven on the part of the respondent.
[33]
I am persuaded that the appellant succeeded in establishing the
requirements set in relation
to s 3(4)(b). Condonation should have
been granted.
[34]
Both parties are blameworthy for being embroiled in these proceedings
including the condonation
application in the court a quo. The
applicant failed to take the liberty of seeking the respondent’s
consent to condonation
prior to launching the condonation
application. Similarly, the respondent vigorously opposed the
condonation application and the
appeal merely on the basis of cost
whereas it could have consented to the condonation and only opposed
the cost issue. The opposition
was unreasonable and unnecessary.
ORDER
[35]
Having regard to the above-mentioned factors, the following order is
made:
1.
The appeal is upheld.
2.
The order of the court a
quo is set aside and replaced with the following:
(a)
Condonation is granted for the applicant’s failure to serve the
notice contemplated in section 3(1)(a)
of the Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002 within the
period laid down in section 3(2)(a)
of the Act.
(b)
No order as to costs is made.
N.S.
DANISO, J
I concur
C.J. MUSI, JP
I concur
C. NEKOSIE, AJ
Counsel for the
Appellant
Adv. J.F. Mitchley
Instructed
by
Campbell Attorneys
C/O Honey Attorneys
BLOEMFONTEIN
Counsel for the
Respondent Adv.
L. Mtukushe
Instructed
by
B. Maranyane Attorneys
C/O State Attorney
BLOEMFONTEIN
[1]
Act 40 of 2002.
[2]
The respondent’s plea was filed ten days after Bar. The late
delivery of the plea was condoned by the appellant.
[3]
Annexure
“WIL2” of the appellant’s founding affidavit.
[4]
Madinda
at
paragraph 8.
[5]
Ibid
para 10.
[6]
P
aragraph
7.5 to 7.7. of the appellant’s founding affidavit and 3.1 to
3.4 of the replication.
[7]
Paragraph
5 to 24 of the respondent’s answering affidavit.
[8]
See
section 2(1)
of the
Contingency Fees Act 66 of 1997
.