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[2021] ZAECBHC 9
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N.M obo A.M v Member of the Executive Council For Health, Eastern Cape Province (629/2019) [2021] ZAECBHC 9 (4 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
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No.
629/2019
In
the matter between:
N[…]
M[…] obo
A[…]
M[…]
Plaintiff/Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH,
EASTERN
CAPE PROVINCE
Defendant/Respondent
JUDGMENT
IN RESPECT OF
INTERLOCUTORY
APPLICATION
FOR INTERIM
PAYMENT
HARTLE
J
[1]
The applicant, who is the plaintiff in the main action for damages,
issued out an interlocutory application on an urgent basis
for an
order directing the respondent (the defendant in the main action) to
make an interim payment pursuant to the provisions
of Uniform Rule
34A. The relief requested is framed as follows:
“
1.
That this application be heard as a matter of urgency and that the
forms and services be attenuated accordingly.
2.
That to the extent necessary, the applicant be permitted to
utilise facsimile copies of affidavits, subject to the originals
being
filed in due course.
3.
That the respondent be ordered to pay to the applicant the sum
of R5 000 000.00 as and for an interim award of damages, to be paid
within 30 days of the service of this order on the defendant (and the
department) in accordance with applicable prescripts.
4.
That the respondent be ordered to pay the opposed costs of
this application, on a scale as between attorney and client, in the
event
that the respondent opposes the application, and if the
application is unopposed, that the costs be on an unopposed scale as
between
party and party.”
[2]
Rule 34A
provides a unique procedural remedy to a claimant (whether acting in
a personal or representative capacity) who has suffered
damages in
the form of medical costs and loss of income arising from physical
disability or the death of
a person,
froma
certain juncture after the issue of the summons claiming
such
damages, to apply for an interim payment “on account” of
what the plaintiff
(i.e. the
claimant or applicant for the interim payment) must still prove in
the action in order to obtain judgment in his/her favour
upon the
trial of the action, provided the prescribed jurisdictional facts and
the necessary requirements therefor are met.
[1]
The enforcement of this right is entirely in the discretion of the
court, but subject to the defendant being safeguarded as provided
for
in the rule in respect of such advance payment (representing a
reasonable proportion of the medical costs or loss of income
that
will likely be recovered as damages arising from the physical
disability), pending final judgment or the order that the court
will
make at
some as yet uncertain
future time
upon the
conclusion of the trial.
[2]
[3]
The rule,
which was
inserted
in
the Uniform
Rules
in 1987,
[3]
provides as
follows:
“
34A
Interim Payments
(1)
In an action for damages for personal injuries or the death of a
person, the plaintiff may, at any time after
the expiry of the period
for the delivery of the notice of intent ion to defend, apply to the
Court for an order requiring the
defendant to make an interim payment
in respect of his claim for medical costs and loss of income arising
from his physical disability
or the death of a person.
(2)
Subject to the provisions of Rule 6 the affidavit in support of the
application shall contain the amount of
damages claimed and the
grounds for the application, and all documentary proof or certified
copies thereof on which the applicant
relies shall accompany the
affidavit.
(3)
Notwithstanding the grant or refusal of an application for an interim
payment, further such applications may be
brought on good cause
shown.
(4)
If at the hearing of such an application, the Court is satisfied that
-
(a)
the defendant against whom the order is sought has in writing
admitted liabilit y for the plaintiff's damages; or
(b)
the plaintiff has obtained judgment against the respondent for
damages to be determined, the Court may, if it thinks fit but subject
to the provisions of subrule (5), order the respondent to make an
interim payment of such amount as it thinks just which amount
shall
not exceed a reasonable proportion of the damages which in the
opinion of the Court are likely to be recovered by the plaintiff
taking into account any contributory negligence, set off or
counterclaim.
(5)
No order shall be made under subrule (4) unless it appears to the
Court that the defendant is insured
in respect of the plaintiff's
claim or that he has the means at his disposal to enable him to make
such a payment.
(6)
The amount of an interim payment ordered shall be paid in full to the
plaintiff unless the Court otherwise
orders.
(7)
Where an application has been made under subrule (1), the Court may
prescribe the procedure for the further
conduct of the action and in
particular may order the early trial thereof.
(8)
The fact that an order has been made under subrule (4) shall not be
pleaded and no disclosure of that fact
shall be made to the Court at
the trial or at the hearing of questions or issues as to the
quantum
of damages until such questions or issues have been determined.
(9)
In an action where an interim payment or an order for an interim
payment has been made, the action shall not
be discontinued or the
claim withdrawn without the consent of the Court.
(10)
If an order for an interim payment has been made or such payment has
been made, the Court may, in making
a final order, or when granting
the plaintiff leave to discontinue his action or withdraw the claim
under subrule (9) or at any
stage of the proceedings on the
application of any party, make an order with respect to the interim
payment which the Court considers
just and the Court may in
particular order that:
(a)
the plaintiff repay all or part of the interim payment;
(b)
the payment be varied or discharged; or
(c)
a payment be made by any other defendant in respect of any part
of the interim payment which the defendant, who made it, is entitled
to recover by way of contribution or indemnity or in respect of any
remedy or relief relating to the plaintiff's claim.
(11)
The provisions of this Rule shall apply
mutatis mutandis
to
any claim in reconvention.”
[4]
The main action involves a damages claim instituted by
the applicant
in her personal and representative capacity, as mother and guardian
of a severely brain-damaged child, A[…].
The child is
presently 6 years old and suffers from a mixed cerebral palsy
involving both spastic and dystonic cerebral palsy.
The damages claim
arises from the negligence of the respondent’s medical staff
during his birth and at the time of the plaintiff’s
confinement
at the Stutterheim and Cecilia Makiwane hospitals which resulted in
him suffering permanent and irreversible brain
damage and
consequently cerebral palsy.
[5]
On 23 November 2020 the merits of the action in respect of
both the
applicant’s personal claim and the child’s claim pursued
by her in her representative capacity was finalized
in her favour.
This culminated in an order issued by Mbenenge JP pursuant to which
the respondent was held liable for the applicant’s
damages in
both her personal and representative capacities.
[6]
The applicant alleges that the trial could not be finalised in total
when it was set down for hearing on 23 November 2020 because the
respondent had, at that stage, not taken steps to progress the
matter
on the issue of quantum. She had filed no expert reports which
resulted in the trial in respect of this aspect being postponed
sine
die.
The order incidentally does not state that the matter is
postponed, but it follows by necessary implication that this aspect
of
the applicant’s claim is extant and falls still to be dealt
with. Since the issue of this application, notice has been given
by
the Registrar that the matter has been allocated for trial in the
4th term on 18 October 2021 when the remaining aspect
of quantum
will be determined.
[7]
The applicant complains that she had hoped for a settlement or
conclusion upon the earlier enrolment of the trial in respect of
both
merits and quantum “so that funds in the form of damages could
be released expeditiously in order to enable (the child)
to obtain
much needed urgent optimal palliative and ameliorative care,
rehabilitation and treatment.” She asserts that this
treatment
“is long overdue and is essential to provide for the day-to-day
comfort, the avoidance of unnecessary pain and
suffering, and the
avoidance of conditions which could or will have an effect on the
mortality and life expectancy of the child.”
[8]
Dr. Campbell, a specialist rehabilitation practitioner and medical
doctor, states in support of the application that it is in the
best
interests of the child that optimum and structured medical care
commence as soon as possible in accordance with the guidance
and
opinion of the relevant expert practitioners. He further opines that:
-
“
All
children with cerebral palsy have a pressing need for specialist and
mult i- disciplinary management to ensure that they are
able to
develop any possible abilit ies in spite of their severe neurological
and developmental impairment, the complicat ions
are prevented and
that the quality of life and burden of care is optimised.
…
..
There
is, however, an urgent need that he have access to any compensation
that may flow out of this claim that he can have access
to the
necessary treatment in the near future.
Any
attempt to delay resolution of the claim would, therefore, impact
negatively on his health, well-being and function.”
[9]
The medical treatment required by the child are set out in the expert
reports filed by the applicant in the action, in particular
those of
Dr Campbell, Grace Hughes (physiotherapist) and Sue Anderson
(specialist professional nurse) to which the applicant adverted
in
the application emphasizing both the need for each facet of care or
treatment required in the meantime and the costs of obtaining
same
privately.
[10]
As an aside
the amount claimed by the applicant in the main action
exceeds R15 million, in addition to the further costs relating to the
protection
of the damages award in a trust or in the hands of a
curator. The far greater bulk of these damages certainly appear to be
in respect
of medical, hospital and related expenditure.
[11]
The
applicant, in the person of her attorney representing her, asserts
that it is well-known to all who deal with cerebral palsy
damages
claims, which reality
ought to be
known to the respondent and her legal representatives,
that
children in the position of the child urgently require sustained
optimal medical treatment of an intensive nature and on an
extensive
basis such as has been described in the
medico-legal
reports on which reliance has been placed.
[4]
This treatment, so the deponent avers, is required for the mitigation
of the day-to-day
sequelae
of the
injury and is necessary for the prevention and alleviation of pain
and suffering, and for the urgently
required
improvement
in the
quality
of
life
of
the child.
[12]
The applicant’s
attorney, who deposed to the founding
affidavit, explains further that the applicant is impecunious,
unemployed and without the
financial wherewithal to provide for the
reasonable and necessary treatment of the child herself as a result
of which such care
has in certain respects been non-existent and in
other respects, where she has been able to access public health care
facilities,
suboptimal for an extended period of time. The delays in
implementing necessary and reasonable treatment are plainly not in
the
interests of the child so the argument goes.
[13]
I indicated
above that the application served before me both as an
interlocutory application (such as the rule provides) and on the
basis of
urgency. In the certificate of urgency counsel sought to
persuade me as follows:
“
The
matter involves a minor child suffering from cerebral palsy and who
urgently needs both medical care and treatment. The medical
experts
Dr Campbell, Grace Hughes and Sue Anderson confirm the dire condition
of the child.”
[14]
The
application was provisionally enrolled after I gave a directive in
terms of rule 12 (1) (d) of the Joint Rules of Practice.
[5]
My
directive, issued at 15h13 on 29 March 2021,
[6]
provided as follows:
“
Having
read the proposed papers and certificate of urgency I issue the
follow ing directive:
1.
The interlocutory application in terms of Rule 34A may be
enrolled on the basis of urgency and on notice to the defendant.
2.
The notice of application can be adjusted to reflect that the
matter will be heard at 12h00 in Bhisho tomorrow (after motion
court).
3.
The defendant must be advised that if he/she wishes to oppose
the application that notice to this effect must be filed before
12h00 tomorrow.
4.
In that event, the parties are to make suggestions to me in
court tomorrow regarding a timeframe for the exchange of papers
and earliest hearing of the matter.
5.
The defendant should further be advised that in the absence of
any notice to oppose being filed or appearance in court tomorrow as
suggested for case management purposes, that the relief sought
together with costs on the scale of party and party will be
entertained
on a default basis.”
[15]
The parties
appeared before me on 30 March 2021 by which time the respondent had
indicated her intention her intention to oppose
the application. I
consequently issued an order postponing the matter for hearing to 7
April 2021(co-incidentally a
motion
court day)
and
further
directives
regarding
the
exchange of opposing papers,
inter
alia
directing
the respondent to file her answering affidavit by 1 April (within two
court days) and heads of argument by the 7th. Incidentally,
it bears
mentioning that this application and a second one for similar relief
also issued by the applicant’s attorney reached
me for
consideration on the basis envisaged in paragraph 12 (1) (d) of the
Joint Rules of Practice as duty judge during the Easter
recess.
[7]
The certificates read in identical terms save for the headers and
distinct file references. The other application was not opposed
by
the respondent
[8]
yet this one
was, and it was heard via
Zoom
conference
on 7 April 2021. I had originally intended that it be heard at the
East London Circuit court after motion court at 14h00,
but I was
requested by the applicant’s attorneys to hear it remotely.
[16]
I had no hesitation
in allowing the matter to be heard on the basis
of urgency given the premise that it involved the interests of a
minor child said
to be in a dire condition and in urgent need of
physical care and treatment, but I point out that the recess period
was particularly
busy with four other opposed applications set down
for hearing at the same time over and above this matter, all of which
were vying
for my attention beside the several matters enrolled for
hearing on the unopposed motion court roll in East London. The
significance
of this will shortly become apparent.
[17]
The respondent
opposed the application on the basis that it was not
urgent but appeared to conflate the issue of urgency as contemplated
in rule
6 (12) with the grounds advanced on behalf of the applicant
to establish the applicant’s “need” for the interim
payment. She also challenged the applicant’s attorney’s
authority to make the application without her ostensible endorsement
thereof by the filing of a confirmatory affidavit. However, on the
merits she provided no facts, evidence, or information to contradict
the case made out for the applicant for an interim payment or why
this court should not exercise its discretion in favour of granting
the relief sought save to contend that there was no haste in
promoting the earliest commencement of the specialised treatment
regime and that urgency had not been made out on the papers. Rather
disappointingly, apart from raising the technical objections
aforesaid, the respondent seemed to misconceive of the nature of the
remedy and offered little assistance to the court especially
regarding what might constitute a reasonable proportion of the
damages to be paid as an interim procedural remedy or what amount
she
believed was likely to be recovered by the applicant ultimately at
the conclusion of the trial. Neither was any help forthcoming
concerning any safeguards to be put in place by the fact that I might
grant the relief and order her to advance a payment that
on its own
is quite substantial.
[18]
I am inclined
to agree with Mr. McKelvey, who appeared on behalf of
the applicant, that the respondent’s attack on the authority of
her
attorney to launch this application is without merit and
opportunistic. The defence was also raised rather perfunctorily in my
view.
[19]
It is so that
sub-rule (1) requires the plaintiff to apply, but
sub-rule (2) refers generically to
the
affidavit that is
required to support the application and which is to contain the
essential information on which an applicant relies
for the remedy
sought. I agree that it is perhaps a salutary practice for an
applicant to align herself (by way of putting up a
confirmatory
affidavit) with all the bits and pieces of information necessary to
be asserted and collated to meet the requirements
for grant of the
procedural remedy and of course to confirm her personal input that
might otherwise amount to hearsay evidence,
but it is to my mind not
fatal to her application that her attorney, who would naturally be
better placed to advance the necessary
detail which is required,
deposed to the founding affidavit on her behalf instead, pursuant to
a mandate given to his firm at the
outset to prosecute the action.
[20]
Indeed, it
is not uncommon for affidavits filed in support of
interlocutory applications which concern issues of procedure to be
sworn by
attorneys representing the respective litigants involved as
opposed to being made by the litigants themselves. There is further
nothing to suggest that the respondent has at any stage before in the
conduct of the action questioned the attorney’s authority
to
prosecute the applicant’s claim on her behalf or that his
authority to settle the issue of liability, a significant event
in
the course of the litigation, falls now to be impugned for any
reason. If the respondent had any qualms in this respect, it
was
certainly open to her to have utilised the machinery of uniform rule
7(1) to have challenged or investigated the authority
of the
applicant’s attorney. She has admittedly not done so. Neither
was any reason advanced in her answering affidavit to
now call into
question the deponent’s entitlement to act other than to remark
therein upon the absence of a confirmatory
affidavit, confirming in
my view that the point taken was simply for nuisance value.
[21]
In Ganes
and Another v Telecom Namibia Ltd
[9]
the Supreme Court of Appeal stated the following:
“
There
is no merit in the contention that Oosthuizen AJ erred in finding
that the proceedings were duly authorised. In the founding
affidavit
filed on behalf of the respondent Hanke said that he was duly
authorised to depose to the affidavit. In his answering
affidavit the
first appellant stated that he had no knowledge as to whether Hanke
was
duly
authorised
to
depose
to
the
founding affidavit
on
behalf
of
the
respondent, that he did not admit that Hanke was so authorised and
that he put the respondent to the proof thereof.
In
my view it is irrelevant whether Hanke had been authorised to depose
to the founding affidavit. The deponent to an affidavit
in motion
proceedings need not be authorised by the party concerned to depose
to the affidavit. It is the institution of the proceedings
and the
prosecution thereof which must be authorised.
In
the present case the proceedings
were
instituted
and
prosecuted by a firm of attorneys purporting to act on behalf of the
respondent. In an affidavit filed together with the notice
of motion
a Mr Kurz stated that he was a director in the firm of attorneys
acting on behalf of the respondent and that such firm
of
attorneys
was
duly appointed
to
represent the respondent. That statement
has
not been challenged
by
the appellants. It must, therefore, be accepted that the institution
of the proceedings were duly authorised. In any event, rule
7
provides a procedure to be followed by a respondent who wishes
to
challenge
the
authority
of
an attorney who instituted
motion
proceedings
on behalf of an applicant. The appellants did not avail themselves of
the procedure so provided. (See
Eskom
v Soweto City Council
1992
(2) SA 703
(W) at 705C-J.)”
[10]
(Emphasis
added)
[22]
Mr. Dukada,
who appeared on behalf of the respondent, submitted that
it is possible to challenge a party’s authority other than by
way
of rule 7 (1), for example by raising an objection or point
in
limine
such as the respondent did. While this may well be the
case, it is clear from the objective of rule 7 (1) however that a
party complaining
of a lack of authority to act must promptly raise
his objection “within 10 days after it has come to the notice
of a party
that such person is so acting
” if he or she
has a problem with it. It certainly cannot be suggested as Mr. Dukada
submitted that the ten-day period referred
to in the rule had not yet
expired whereas the respondent must have known from the date of the
commencement of the action that
the deponent was representing the
applicant in respect of its prosecution and by necessary implication
any applications incidental
thereto. Otherwise, the party complaining
must with the leave of the court on good cause shown dispute it at
the relevant juncture
when he chooses to raise his or her concern.
[23]
Here no reason
was put up at all why the authority of the deponent to
act should be called into question. The mere fact that no
confirmatory affidavit
appears from the applicant’s
interlocutory application for a procedural remedy in an action where
no objection to the deponent’s
acting has been raised before
during the conduct of the action does not by any stretch of the
imagination automatically bring the
respondent’s “objection”
within the ambit of rule 7 (1). Neither was there any obligation on
the part of the
applicant’s attorney, as was suggested by Mr.
Dukada, to put up proof of a special power of attorney to have
launched the
present application.
[24]
Given that
the court in an application for an interim payment would
certainly be concerned from a safeguard point of view that the
advance
sought to be paid is going to be paid to a legitimate legal
representative of such a claimant one would have expected the
respondent
to have provided reasons along these lines why the payment
should not be made to the applicant’s attorneys in
circumstances
where as suggested on behalf of the respondent she
might be entirely unaware that the request has been made on her
behalf. In this
respect however there was no demur from the
respondent whatsoever, leading me to conclude that the objection was
raised for no
valid reason at all.
[25]
The next question
concerns urgency. The urgency contemplated by the
provisions of rule 6 (12), read together with par 12 of the Joint
Rules of Practice,
is to be distinguished from the motivation
required to justify the basis for an interim payment as contemplated
in rule 34A itself,
although these reasons may well overlap.
[26]
It cannot
be gainsaid in my view that the need for and entitlement of
the applicant to approach this court for an interim payment has been
amply demonstrated. Despite the respondent’s roundabout way of
challenging the necessity for the interim payment under the
mantle of
the technical objection of lack of urgency, Mr. Dukada conceded
during the hearing that the applicant indeed meets the
requirements
for an interim payment but for the technical objections raised to the
application.
[27]
In this
respect the application was launched after the notice of intention to
defend was filed.
[11]
A
judgement on liability was granted to the applicant on 23 November
2020 by the order of Mbenenge JP. The applicant resorts within
the
category of plaintiffs who are entitled to approach the court for an
interim payment for the medical costs of the child arising
from his
physical disability which form the greater bulk of the quantum
claimed in the main action. She has furnished details (in
the form of
medico legal opinions supported in the application on affidavit) of
what is required for now, in the interim, until
the trial can be
concluded, and at which point final judgment will be pronounced and
which sum it is contended on her behalf constitutes
a “fair,
reasonable, equitable, and conservative portion of the child’s
damages and sum of interim damages.”
[12]
She has also explained the exigency and objective for approaching the
court at this
juncture
for the remedy at her disposal. Albeit
hearsay
evidence,
it appears
to be common cause that she does not have the financial means at her
disposal to
make
provision for these expenses herself. Although some state
interventions are in place to provide certain incidents of the
treatment
required, the complaint is that these are not adequate,
optimal, or commensurate with what the child needs. The respondent
has
not pertinently pleaded that the treatment could now or in the
future be
provided via public health care facilities. Her only contention in
this respect is that since he has not “ceased
receiving this
medical treatment … this does not render the matter urgent as
it is likely to be finalized during the current
year.” Further,
it has not been suggested that the respondent, or the Department of
Health rather, does not have the means
at its disposal to enable it
to make the interim payment. (Indeed, it is a sad reality that
millions of rands are being paid out
by the Department as damages for
medical malpractice claims of a similar nature.)
[28]
The delay
in the finalisation of the action in total at its last enrolment upon
trial is also a very relevant factor in justifying
the applicant’s
entitlement to an interim payment. Even though the respondent denies
that conduct on her part was causal
to the applicant’s
predicament of the child needing treatment now and not being able to
finance it herself whereas the payment
of these damages will happen
as a certainty albeit at some uncertain stage when the matter serves
before
court again
for the quantum hearing, the fact of the delay itself and this
court’s inability to hasten this moment in any
practical manner
(see sub-rule (7)) justify the grant of the remedy in favour of the
applicant. The stumbling block it appears
is the fact
that at this late stage in the day, the respondent by her own
admission has not yet filed expert reports. Mr. Dukada
suggested
during argument, when I asked him if there was any reason why I
should not overlook the technical objection in respect
of the claimed
lack of urgency and deal with the merits of the
application
itself, that the respondent will
be
prejudiced because, in the absence of any
assessment
by
her
own
experts,
she
could
not
weigh
in
on
the
reasonableness of the estimated costs of the child’s treatment
being claimed even
in the
interim. This prejudice, apart from not being a basis to oppose a
rule 34A application, is however in my view of her own
doing and was
certainly not pleaded in opposition
to the
present application.
[13]
[29]
Quantum and
merits were not separated at the first enrolment of this
matter upon trial, and it is further clear that in prior case
management
directives issued by this court the respondent was
prevailed upon to get on with the filing of these. She has still not
done so
and believes it to be her prerogative to do so when she feels
it appropriate. The peremptory time limits provided for in amended
rule 36
(9)
however make it abundantly plain that she missed the boat on the
earlier occasion of the set down of the trial (when both merits
and
quantum were to be determined) and probably caused the present delay
resulting in the trial court doing the next best thing
in line with
the practical objectives of judicial case management by severing
quantum from the mix and allowing for this aspect
to be determined
down the line once the respondent is better placed to consider this
aspect. Self-evidently she is not yet there.
Nothing more needs to be
said about this unfortunate state of affairs save that I do not
accept the purported taint against the
applicant that she has dragged
her heels or that she has not been
bona fide
or has
manufactured a basis to approach this court for the present relief.
Even after the applicant explained away an obvious misinterpretation
that a further postponement of the quantum hearing was the premise
for the application, Mr. Dukada continued to argue the respondent’s
case on the misunderstood basis.
[30]
Returning
to the aspect of urgency, there is merit in the submission
made on behalf of the respondent that the applicant has not strictly
complied with the provisions of rule 6 (12) (b) which require in
respect of urgent applications that every affidavit filed under
the
subrule shall set forth explicitly the circumstances which render the
matter urgent and to say why the applicant will not be
afforded
substantial redress at a hearing in due course. The applicant in
justifying urgency appears to have missed the point that
the inherent
or relative urgency that justifies the need for the interim payment
is different from the level of urgency that warrants
the matter being
heard earlier than it would in the ordinary course or attenuating the
relevant time frames or dispensing with
the usual forms or service.
The subrule has in mind that this kind of application (i.e., a
professed urgent one) is bound to prejudice
the party at the
receiving end of such abridgment etc.
In casu
, for example,
the respondent was prevailed upon at very short notice to file an
answering affidavit although no complaint was raised
by her in this
respect either in her answering affidavit or on her behalf by Mr.
Dukada in argument. (There was however a random
reliance on the
applicant’s failure to have strictly complied with the
provisions of rule 6 (12) by failing to address the
aspect of
insubstantial redress to her unless she could be heard on an urgent
basis).
[31]
The obvious
effect of launching the application as one of urgency (with no
express justification why the usual forms and time frames
were to be
dispensed with in all the circumstances) is that the applicant’s
needs were prioritised over other litigants waiting
their turn in
line for the hearing of their matters.
[14]
The applicant never stated why it was necessary at all for the matter
to be heard in the midst of
a very busy
Easter
recess.
I
agree that whereas
applications
of
this
nature (for interim payments in like actions where the child has
suffered permanent and irreversible brain damage and consequently
cerebral palsy as a result of the negligence of public health staff
during the course of the child’s birth and is in need
of
appropriate treatment pending the finalisation of a delayed trial)
inherently carries with it an element of urgency, and that
the
interests of a child are always relatively urgent and obviously of
paramount importance, that it was entirely unnecessary to
have caused
this matter to be heard under the mantle of urgency during the recess
whereas it could have been entertained
during
term, as
an
ordinary interlocutory application, with the permitted expedition
that accompanies such an application.
[15]
[32]
The question
is whether this justifies the striking of the matter
from the roll. Mr. Dukada suggested that I might order either that or
permit
the matter to be continued in the normal manner.
[33]
An
important consideration in this respect is that the present
application was issued as an interlocutory one first and foremost.
An
applicant is entitled in an interlocutory application at own risk to
impose time frames regarding the exchange of papers and
the hearing
of these matters and to bring such a date forward with due regard to
the exigency of the relief sought in each peculiar
instance. Indeed,
the cumbersome procedure of an opposed application is discarded due
regard being had to the particular exigency,
it being up to the
respondent to object to any perceived prejudice. The recent insertion
of rule 37A to the Uniform Rules also
permits a case management judge
at a case management conference to give directions for the hearing of
opposed interlocutory
applications
by a motion
court on an expedited basis.
[16]
[34]
Rule 6(11),
which is an exclusionary sub-rule, (distinguished from
the rest of rule 6) provides a
sui generis
model and procedure
for simple interlocutory and other applications incidental to pending
proceedings. It states as follows:
“
Notwithstanding
the aforegoing sub-rules, interlocutory and other applicatio ns
incidental to pending proceedings may be brought
on notice supported
by such affidavits as the case may require
and set down at a time
assigned by the Registrar or
as directed by a Judge
.”
(Emphasis added)
[35]
There is no
prescribed form of notice of motion for interlocutory applications,
but the somewhat cumbersome procedure laid down
in rule 6(5) need not
be followed where parties are already litigating.
[17]
Further, although the sub-rule is silent as to the procedure to be
adopted when such an application becomes opposed with regard
to
delivery of notice of intention to oppose or the filing of answering
affidavits, it appears that answering and replying affidavits,
when
these are necessary to be filed, should be filed within a reasonable
time
[18]
The applicant can
prescribe any reasonable period he deems fit between delivery of such
an application and the hearing of it although
he does so at his own
risk as the respondent
may argue
that he has not had an inadequate opportunity to oppose
the
application.
[19]
[36]
The parties
are therefore left somewhat at large to make their own
rules relating to the delivery of documents for purposes of an
interlocutory
application, but if a court is not satisfied that the
application is ripe for hearing when it comes before it, either
because the
Respondent has not been afforded adequate time in which
to deliver an answering affidavit, or because heads of argument are
required
to be filed, appropriate directions may be given as to the
arrangements for the hearing of such applications. The risk envisaged
may entail nothing more than that the application is removed from the
roll or postponed, with the applicant to pay the costs.
[37]
In practice
interlocutory applications are routinely set down on the
unopposed motion court roll and the future conduct of the matter
determined
with reference to time frames reached between the parties,
alternatively directions being issued by the court as and when
circumstances
dictate such intervention. The new rule 37A (12) (e)
confirms the desirability of such applications being expedited on the
motion
court roll in pursuit of effective case management.
[38]
In this instance,
since the respondent raised no objection to the
short time frames set by me but after counsel provided me with their
own suggestions,
and although the application should ideally have
been heard during term, in my view the application was otherwise in
substantial
compliance with the provisions of rule 6 (11) and was
required to be heard with the necessary expedition that the matter
calls
for. I could have directed that the matter be heard other than
on a date during recess, but I elected to hear it when I did, having
regard to the obvious exigency which will remain incidentally should
I strike the matter from the roll.
[39]
Therefore,
despite the respondent’s objection taken to the
applicant’s less than perfect papers, again raised mechanically
in
my view, I am not inclined of the view that she or her attorneys
have made themselves guilty of any abuse of process by having
launched the application in the format it was, or by having had the
benefit of the matter being argued during recess such as to
warrant
the striking off of the matter. The respondent has not complained of
any inconvenience in this respect.
[40]
On the issue
of costs, I am satisfied that the applicant has been
substantially successful, and these should follow the result. The
applicant
has prayed for costs on the scale of attorney and client.
In my opinion punitive costs are indeed justifiable due to the
obstructive
approach adopted by the respondent who as a responsible
steward of public funds should not be unnecessarily opposing
applications
simply for the sake of doing so. In an application of
this nature the court would be greatly assisted by meaningful
representations
that promote a just and equitable determination of
the interim payment especially where there is no suggestion that the
damages
the applicant says are likely to be recovered fall to be
assailed on any real basis upon trial.
[41]
The only remaining
aspect is to note that I raised with Mr. McKelvey
my concern that in safeguarding the interim payment the sum advanced
should be
administered through a trust established for the benefit of
the child, which is an inevitability in any event once the court
finally
pronounces on the quantum. He agreed that this is the
appropriate thing to do and suggested that if I were inclined to
grant the
applicant’s motion that the parties should be
provided an opportunity to prepare a consensual draft order to
accommodate
the reservations of the court in this respect.
[42]
I intend to
issue my order in the meantime however, to be
supplemented in due course with the proposed draft.
[43]
In the premises
I make the following order:
1.
The respondent is ordered to pay to the applicant
the sum of R5 000
000.00 (five million rands) as an interim payment.
2.
Such amount is to be paid within fifteen court
days of this order.
3.
The parties are directed within 5 days to provide
a consensual draft
order proposing the creation or establishment of an appropriate Trust
to administer the interim payment on behalf
of the minor child
pending the finalisation of the action, and ultimately the damages
that fall to be awarded.
4.
If the parties cannot agree on the terms
of such a draft or wish to
make further submissions concerning the necessary safeguards to be
put in place as envisaged by rule
34A, they shall communicate their
intention in this respect to the Registrar and make appropriate
arrangements for the matter to
be enrolled for this aspect to be
addressed and shall in that event supplement their papers if
necessary and/or file written heads
of argument.
5.
In the meantime, the interim payment shall be paid to the applicant’s
attorneys to be invested in an interest-bearing account in terms of
section 86
(4) of the
Legal Practice Act, No. 28 of 2014
, and to make
payment of any reasonable expenses or disbursements for the benefit
of the minor child as a trustee would have been
able to do pursuant
to the objects of the envisaged Trust, and in due course to account
fully to the trustee appointed, of all
costs, fees, expenditure
and/or disbursements paid from the interim payment once the Trust has
been registered and the balance
of the award is paid over.
6.
The respondent/ defendant shall be liable for the
costs of this
application on the scale of attorney and client.
_____
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF APPLICATION: 7 April 2021
DATE
OF JUDGMENT: 4
June 2021
*Judgment
delivered electronically on this date by email to the parties.
APPEARANCES
:
For
the plaintiff/applicant: Mr. C McKelvey instructed by Nonxuba Inc. of
Rivonia (Mr. Nonxuba).
For
the defendant/respondent: Mr. P
Dukada instructed by
the State Attorney, East London
(ref. Mr. Mgujulwa).
[1]
See sub-rules (1)– (5); Karpakis v Mutual & Federal
Insurance Co Ltd [19913 All SA 430 (O) at page 436.
[2]
Karpakis,
Supra
,
at page 436.
[3]
The novel procedural remedy was introduced by
Rule 25
of GN R2164 of
2 October 1987 and
Rule 25
of GN 2642 of 27 November 1987.
[4]
The applicant’s attorney relies on the extent and general
orders of damages made by our courts in matters with facts the
same
as or similar to the present matter. It is so that there have been
numerous settlements and judgments involving the respondent
in
comparable cases.
[5]
Sub paragraph 12 (d) provides as follows in respect of this category
of urgent matters sought to be enrolled on a day other t
han on the
ordinary motion court roll:
“
(
d
)
In all urgent applications in which it is sought to enrol the matter
other than on a day normally reserved for the hearing of
motion
court matters:
(i)
The practitioner who appears for the applicant must sign a
certificate of urgency which is to be filed of record before
the
application papers are placed before the Judge and in which the
reasons for urgency are fully set out. In this regard, sufficient
particularity is to be set out in the certificate for the question
of urgency to be determined solely therefrom and without perusing
the application papers.
(ii)
The certificate of urgency will be placed before the Judge who will
make a determination solely from that certificate as
to whether or
not the matter is sufficiently urgent to be heard at any time other
than the normal motion court hours.
(iii)
Should he/she
determine that it is sufficiently urgent, he/she will
then give directions as to the time and place, when and where the
application
is to be heard.”
(iv)
[6]
The application is dated 15 March 2021 but could only have been
issued after my directive.
[7]
See A Tsipa obo (minor child) v MEC for Health, Eastern Cape
Province (Bhisho case no 22/18).
[8]
Counsel in that matter settled on an order in a Rule nisi format
calling upon the respondent to show cause on the selected return
date why her department should not be ordered to make the interim
payment requested in that matter. I am not aware
what
happened on the return date but the device of this form of order
employed would certainly have given the respondent more
time to
reply if she had wanted to
[9]
[2004] 2 All SA 609 (SCA).
[10]
Supra
,
at [19].
[11]
The respondent mistakenly suggested that the applicant was obliged
from this date already to have brought the application, rendering
it
seriously overdue by the time she got around to it, but this
argument misses the point that the judgment on liability obtained
in
November 2020 was a necessary jurisdictional requirement before she
could do so.
[12]
See Van Wyk v Santam Bpk
1997 (2) SA 544
(O), at 546 G- 547 F, in
which the court held that the standard of
proof
is not as high as it will be when the action goes on trial. The
quantum
of evidence required by the Court at this stage in
order to be able to direct an interim payment will vary from case to
case and
according to the circumstances of each case. One of the
considerations which will be weighty is the extent of facts in
dispute
as well as the nature of these facts . In that matter where
a reader of the originating affidavit was referred to the medico
legal reports already filed of record, criticism levelled against
the applicant for failing to file confirmatory affidavits by
the
experts themselves came to naught, the court even going so far as to
suggest that the formalism of obtaining such affidavits
would amount
to an unnecessary running up of costs in a scenario where the focus
is on gaining an impression only, or conducting
a rough and ready
assessment, of what is necessary at this stage to be advanced as an
interim payment.
[13]
It would be absurd indeed if the respondent could ward off a
rule
34A
application by claiming that sh e cannot assess the
reasonableness of the interim payment because she has not briefed
her own
experts , whereas it is exactly because of her tardiness in
this respect that the payment has become necessary to do justice to
the adverse situation.
[14]
See my opinion expressed in National Ship Chandlers (Natal) 1989
(Pty) Ltd v Wayne Ellis and Another, Case no. 542/18 PE, Reasons
dated 6 April 2018, at [35] that:
“
When
an applicant insists on dealing with a matter on an urgent basis
there is not only inconveni ence
to
the respondent, but to the court as well as litigants and
practitioners making demands on its time and resources. Other
litigants
(and their representatives) waiting for their matters to
receive attention are also compromised by the queue being jumped as
it were by a litigant making their subjective emergency everyone
else’s concern.”
[15]
I dealt with the unique nature of such applications in Farrington v
Farrington Farming (Pty) Ltd and Others v Volcano Agrosciences
(Pty)
Ltd and Another; In re: Frikton CC v Chris Hani District
Municipality (75/2008, 3245/2009 [2010] ZAECGHC 134 (18 March
2010)
at [27] – [42].
[16]
See sub-rule (12) (e).
[17]
See Herbstein and van Winsen, the Civil Practice of the High Courts
of South Africa, 5
th
Ed 2009, at 424, and the authorities referred to therein.
[18]
See Gisman Mining and Engineering Company (Pty) Ltd (in liquidation)
v LTA Earthworks (Pty) Ltd 19
77 (4) SA 25
(W) at 27 H – 28 A.
[19]
See SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw
1981 (4)
SA 329
(O) at 332 B – C.