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[2021] ZANCHC 25
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Rakhojane v MEC for Health, NC Province (2293/2016) [2021] ZANCHC 25 (4 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE
DIVISION,
KIMBERLEY
Case
No:
2293/2016
Heard:
05/05/2021
Delivered
:
04/06/2021
In
the
matter
bet
ween:
GEORGE
RAKHOJANE
Applicant/Plaintiff
and
ME
M
BER OF
THE
EXECUTIVE
COUNCIL
FOR
HEALTH, NC
PROVINCE
Respondent/Defendant
JUDGMENT:
APPLICATION
FOR LEAVE TO APPEAL
Mamosebo
J
[1]
This is an application for leave to
appeal to the Full Bench of this Division, against my
judgment handed down on
OS February 2021 in which I
refused to grant the applicant condonation for the
late filing of
his Particulars of Claim and struck out
specified paragraphs in
the
application,
with costs.
The
application
is opposed.
The
Notice of Application
for Leave to
Appeal
[2]
On
19 February 2021 the applicant filed his notice of application for
leave to appeal dated 29 September 2020, with the office of
the
Registrar. The Notice comprises fourteen (14) typed pages of mainly
lengthy
arguments. He also filed heads of argument consisting of eight (8)
typed pages. Despite the many admonishments by the courts
that the
grounds of appeal, in a Notice of application for leave
to
appeal, must be clearly and succinctly set out, in unambiguous terms,
to enable the Court and the respondent to be fully and properly
informed of the case which the applicant seeks to make out,
and,
for the respondent to meet in its opposition, the applicant has not
taken heed thereof. The following warrants repetition: (i)
The notice
should not contain arguments; and (ii) The points to be argued
must
be fully set out in the heads.
[1]
In this instance, I have had to repeatedly ask Mr Ponoane, for the
applicant, what the grounds of this-application really are.
The
distilled grounds for leave to appeal
[3]
The
applicant
mainly
argued
two
grounds
that
this
Court
erred:
3.1
in relying on prescription to determine
that the purported amended particulars of claim had created a new
cause of action which cause
of action had in any event, prescribed;
and
3.2
in refusing to grant the applicant
condonation.
[4]
The
test for applications for leave to appeal is
governed by section 17 of the Superior
Courts
Act
[2]
,
which
stipulates:
"17(1)
Leave to appeal may only be given where the judge or judges
concerned
are
of
the
opinion
that
-
(a)
(i)
The appeal would have a
reasonable prospect of success;
or
(ii)
There is some other compelling
reason why the appeal should be heard, including conflicting
judgments on a matter under consideration;
(b) The
decision sought on appeal does not
fall within
the
ambit of section 16(2)(a);
and
(c)
â¦â
[5]
The
provisions of section 17(1) raise the threshold of the test for leave
to appeal.
[3]
The applicant must
demonstrate to the Court that
there
are reasonable prospects that the appeal would succeed. Nugent
JA
made
the
following
pronouncements
in
S
v Mabena
[4]
:
"[22]
It is the right of every litigant against
whom an appealable order has been made to seek
leave to appeal
against the order. Such an application should not
be approached as if it
is
an impertinent challenge to the Judge concerned to justify his
or her decision. A court from which leave to appeal
is sought
is called upon merely to reflect dispassionately
upon its decision, after hearing argument,
and
decide whether there is a reasonable prospect that a higher
court may disagree."
[6]
Determining whether to grant leave to
appeal on the basis that the appeal would have a reasonable prospect
of success is higher and
more stringent. Our courts have already
interpreted the phrase
"would",
found in section 17(1)(a)(i) of the
Act, as indicative of some form
of
certainty
or
realistic
chance
of
success.
Prescription
in respect of the amended particulars of claim
[7]
Mr
Ponoane argued that prescription is a non-starter in this application
because the cause of action was not new but merely a perfection
by Dr
Wilkinson, the applicant's medical expert, of the cause of action as
it appeared in the applicant's particulars of claim.
Invoking
the case of
Links
v Department of Health, Northern Province
[5]
pertaining to when prescription starts to run. Counsel argued that
the applicant was not aware of the cause of action until
Dr
Wilkinson's report reached his attention. In countering this argument
Mr Lemboe, for the respondent, pointed out that Dr Wilkinson's
report
is dated 22 September 2016, a month prior to the
issuing
of
the
summons
on
21 October
2016.
[8]
The
Constitutional Court has, two years after the
Links
judgment,
in
Loni
v Member of the Executive Council, Department of Health, Eastern
Cape, Bisho
[6]
,
had
occasion to re-visit the prescription issue and made this
pronouncement:
"[23]
In Links, this Court found that in order for a party to successfully
rely on a prescription claim in terms of s 12(3)
of the Prescription
Act, he or she must first prove 'what the facts are that the
applicant is required to know before prescription
could commence
running' and secondly, that 'the applicant had knowledge of those
facts'. The first issue that this Court considered
in Links was 'what
[were] the facts from which the debt arose'. It explained that these
would be the 'facts which are material to
the debt'. This Court
opined that
it
would be setting the bar too high to require knowledge of causative
negligence. In answer to this issue, this Court held
that in cases involving
professional negligence, the facts from which the debt arises are
those facts which would cause a plaintiff,
on reasonable grounds, to
suspect that there was fault on the part of the medical staff and
that caused him or her to 'seek further
advice'. The court held that
it would be unrealistic to expect a party, with no knowledge of
medicine,
to
have knowledge of the facts of his condition, without seeking
professional
medical
advice.
[24]
In applying those
principles to the facts before it, in Links,
this Court held that the applicant would
have to have had 'knowledge
of [the] facts [which] would have led him to think that possibly
there had been negligence and that this
had caused his disability.
This Court placed emphasis on the fact that the applicant was unable
to acquire knowledge of the material
facts from any medical
doctor or nurse independent
of the hospital until he was
discharged. This Court decided in favour of the applicant, as it
found the claim had not
prescribed as the applicant 'did
not know or have reasonable grounds to suspect' that it was the
medical staff's negligent treatment
that led to the
amputation and loss of the use of his
left hand.
[25]
The main finding of This Court
was that:
'However,
in cases of this type, involving professional negligence, the party
relying on prescription must at least show that the
plaintiff was in
possession of sufficient facts to
cause them on reasonable grounds
to think that the injuries were due to the fault of the medical
staff. Until there are reasonable
grounds for suspecting fault
so
as to cause the plaintiff to seek
further advice, the claimant cannot be said to have knowledge
of the facts from which the
debt arises.,,,
[8]
The facts in
Links
are clearly distinguishable from the
facts in this case. In this case, when summons was issued Dr Johan
Wilkinson's report, the applicant's
Neurosurgeon, dated 22 September
2016, was in his legal team's possession. It is not a case that the
applicant was seeking expert
medical advice. The real issue here that
has a bearing on the aspect of prescription is that the applicant's
amended particulars
of claim, filed in terms of Rule 28(1) were only
served on
the
respondent 18 months later. The respondents conceded that the MEC did
not object to the amendment of the applicant's particulars
of claim,
on whom the applicant ought to have served the amended copies within
10 days of the expiration of the period mentioned
in subrule
28 (2).
[9]
The applicant ought to have served and
delivered the amended particulars of claim as prescribed in Rule 28
of the Uniform Rules of
Court,
but has failed to do so. Mr Ponoane's contention that the amended
particulars of claim are not new but a perfection of what
was already
filed is without substance. I have decided in the main judgment that
the amended particulars of claim constitute a new
cause of action,
which is out of time, in respect of which prescription
applies. It therefore follows that leave
to appeal on this ground stands
to
faiI.
Condonation
[10]
The
condonation application related to the late filing of the amended
particulars of claim. The main judgment has adequately dealt
with the issue at paras 11, 12, 13 and 14 in
respect of which the aspect of good cause was also considered,
and found to be absent. Having referred to
Madinda
v Minister of Safety and Security
[7]
,
I
refused to condone
the
applicant's
condonation
request.
[11]
In the premises, I am of the view that
there are no reasonable prospects of a success appeal in that another
court, on appeal, would
arrive at a different conclusion based on the
facts, than this Court arrived at. The application for leave to
appeal to the Full
Bench
of
this Division
should
therefore
fail.
[12]
On the question of costs. There is no
reason why costs should not follow
the
result.
[13]
Resultantly, the following order is
made:
The
application
for
leave to
appeal
is
dismissed
with
costs.
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE
DIVISION
For
the Applicant:
Mr. M.J. Ponoane
Instructed
by: Ponoane Attorneys
c/o
Job
Attorneys
For
the
Respondent:
Mr. S. Lemboe
Instructed
by:
Robert
Charles
Attorneys
[1]
Songono
v Minister of Law and Order 1996 (4) at 3851 - 386B; S v McKenzie
2003 (2) SACR 616
(CPD) at 618c - 619b; Xayimpi and Others v Chairman
Judge White Commission (formerly known as Browde Commission) and
Others
[2006] 2 All SA 442
(E) at 445 para 8(c); S v Van Heerden
2010
(1) SACR 539
(ECP) at 541d -
542a
[2]
10
of 2013
[3]
The
Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC)
at para 6; MEC for Health, Eastern Cape v Mkhitha and Another[2016]
ZASCA 176 (25 November 2016) at paras 16-17 and Notshokovu v S
[2016] ZASCA 112
(7 September 2016) at para 2
[4]
2007 (1) SACR 482
(SCA) at 494 (para 22
[5]
(CCT
29/15) (2016] ZACC 10;
2016 (5) BCLR 656
(CC);
2016 (4) SA 414
(CC)
(30 March 2016)
[6]
CCT
54/17) (2018] ZACC 2;
2018 (3) SA 335
(CC);
2018 (6) BCLR 659
(CC)
(22 February 2018)
[7]
(153/07)
[2008] ZASCA 34
;
[2008] 3 All SA 143
(SCA);
2008 (4) SA 312
(SCA)
(28 March 2008) at para 10