NM obo IM v MEC for Health: Eastern Cape Province (2983/2020) [2021] ZAECMHC 26; 2021 (6) SA 490 (ECM) (3 August 2021)

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[2021] ZAECMHC 26
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NM obo IM v MEC for Health: Eastern Cape Province (2983/2020) [2021] ZAECMHC 26; 2021 (6) SA 490 (ECM) (3 August 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NUMBER: 2983/2020
In
the matter between:
N[...]
M[...] obo I[...]
M[...]

Applicant
and
THE
MEMBER OF EXECUTIVE COUNCIL
FOR
HEALTH: EASTERN CAPE PROVINCE
First Respondent
JUDGEMENT
MATEBESE
AJ
[1]
On 4 September 2020 applicant, acting in both her personal capacity
and in her capacity as
the mother and natural guardian of I[...], the
minor child, instituted action proceedings against the respondent. In
the summons
and particulars of claim the applicant, plaintiff
therein, claims that the minor child was born with foetal distress,
hypoxic ischaemic
and superadded hypoglycemia giving rise to
quadriplegic cerebral palsy and developmental delay.
[2]
The applicant further alleges in her particulars of claim that the
minor child’s condition
aforesaid is as a result of the negligence
and/or breach of legal and contractual duty on the part of the
respondent’s employees
acting within the course and scope of their
employment as such.
[3]
In his plea the respondent has raised two special pleas. The first is
that the applicant’s
claim in her personal capacity, has
prescribed. The second is that the applicant has failed to comply
with the provisions of section
3 of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 (“Act 40
of 2002”).
[4]
The second special plea is also raised as against the minor child’s
claim.
[5]
Faced with the second special plea the applicant instituted the
current application proceedings
in which she seeks an order:
5.1
Declaring that the applicant first became aware of a damages claim
against the respondent
arising from the alleged negligent medical
treatment, care and supervision provided to the applicant during the
birth of her baby
by the staff of the respondent at Gateway Clinic,
Eastern Cape and St Barnabas Hospital, on 29 January 2020;
5.2
Alternatively, in terms of section 3(4)(a) of the Institution of
Proceedings Against Certain
Organs of State Act 40 of 2002, the
applicant’s failure to serve her notice dated 20 July 2020, in
terms of section 3(1) of the
Institution of Proceedings Against
Certain Organs of State 40 of 2002 timeously, be condoned.
5.3
In terms of
section 3(4)
of the
Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002
, the applicant’s
defective notice in terms of
section 3(1)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
be
condoned.
[6]
The application is opposed by the respondent. I will deal with the
respondent’s grounds
of opposition later, first I deal with the
facts which I consider relevant in the determination of this matter.
I mention that these
facts are common cause or are not meaningfully
denied.
The facts
[7]
On 26 July 2016 applicant was admitted at St Barnabas Hospital,
Eastern Cape, following the
onset of regular and painful
contractions. The applicant was pregnant at the time.
[8]
On the same day the minor child was born through natural vaginal
delivery.
[9]
The applicant alleges, in her particulars of claim that the minor
child was born with the
medical condition described in paragraph [1]
above.
[10]
She also alleges that she is illiterate with her highest completed
educational grade being grade six
(6) and that she stays in the rural
areas of the Eastern Cape. She further states that she accepted that
the minor child’s “abnormality”
was due to unanticipated and
unavoidable event at the time of birth.
[11]
She further alleges that during January 2020 her sister in law told
her about Nonxuba Attorneys who help
people institute medical
negligence claims and that after setting an appointment she met Mrs
Nonxuba who, after she gave her the
history of her pregnancy and the
fact that the child was diagnosed with cerebral palsy, advised her
that in her opinion the medical
staff and the hospital were negligent
in caring for her and her baby during labour and delivery.
[12]
According to the applicant this was the first time that she became
aware that her child’s cerebral
palsy was caused by the negligence
of the nursing and medical staff at the clinic and also at St
Barnabas Hospital.
[13]
She alleges that Mrs Nonxuba undertook to obtain the relevant
hospital records where the applicant was
treated and to arrange for
the applicant to consult with experts.
[14]
On 20 July 2020, the applicant, through her attorneys, served a
notice in terms of
section 3
of Act 40 of 2002 upon the respondent.
[15]
An opinion was later obtained from Dr Murray, an Obstetrician, which
confirmed the advice by Mrs Nonxuba.
The opinion of Dr Murray is
dated 1 September 2020.
[16]
As already stated above, summons were issued on 4 September 2020.
They were served on the respondent
on 19 September 2020.
[17]
As already stated above, the application is opposed by the
respondent. The respondent, in opposition
of the application, argues
that the applicant has failed to satisfy the requirements of section
3(4) of Act 40 of 2002 in that:
17.1
The applicant’s claim has prescribed.
17.2
The applicant has failed to show good cause for her failure.
17.3
The respondent is unreasonably prejudiced by the applicant’s
failure.
[18]
At the hearing of the matter the parties agreed that the matter be
dealt with as an application for condonation
in terms of section 3(4)
of Act 40 of 2002 and that I need not determine the declaratory
relief sought in prayer 1 of the Notice
of Motion.
[19]
I deal with the respondent’s grounds of opposition in turn
hereunder. But, first it is necessary to
have regard to the
provisions of section 3(4) of Act 40 of 2002 and the provisions of
section 12 of the Prescription Act 68 of 1969
(“the Prescription
Act”)
[20]
Section 3(4) of Act 40 of 2002 provides:
“
(4)(a) If an
organ of state relies on a creditor’s failure to serve a notice in
terms of subsection (2)(a), the creditor may apply
to 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.”
[21}
Section 12
of the
Prescription Act provides
:
“
12
When prescription begins to run
(1)
Subject to the provisions of subsection (2), (3) and (4),
prescription shall commence to run as soon as the debt is due.
(2)
…
(3)
A debt shall not be deemed to be due until the creditor has
knowledge of the identity of the debtor and of the facts from which
the
debt arises: Provided that the creditor shall be deemed to have
such knowledge if he could have acquired it by exercising reasonable
care.”
Prescription
[22]
Regarding the applicant’s claim in her representative capacity, the
respondent did not advance any
argument that the claim has
prescribed. Instead, the respondent indicated that he will abide the
decision of the court in this regard.
[23]
The respondent argued that the applicant’s claim, in her personal
capacity, has prescribed in terms
of
section 11(d)
read with
section
12
of the
Prescription Act. This
argument was pegged on the
following:
23.1
The minor child was born on 26 July 2016 and it was on that day that
the applicant’s debt became due
and the applicant became aware of
the condition of the minor child and the identity of the department
(the respondent) as a debtor.
23.2
The minor child was the applicant’s fifth child with the four (4)
previous babies having been born
without any abnormalities. The Apgar
scores of the minor child at birth were low, an indication of foetal
distress.
23.3
On her version, her attorneys were able to advise the applicant on 26
January 2020 that the condition
of the minor child was caused by the
negligence on the part of the hospital.
23.4
The above, so the submission went, shows that the applicant had facts
at her disposal which, had she
exercised reasonable care, she would
have had knowledge of the identity of the debtor and the facts from
which the debt arose as
early as 26 July 2016 or soon thereafter.
[24]
Even though it is for the applicant to set out a basis why she claims
that the debt should not be regarded
as due for purposes of
prescription under
section 3(4)(a)(i)
, the onus is on the respondent
to establish that the applicant was aware or must be regarded as
having acquired the knowledge envisaged
in
section 12(3)
of the
Prescription Act.
[25
]
In my view, the respondent has failed to establish, through facts,
that the applicant acquired the knowledge
of the identity of the
debtor and of the facts giving rise to the debt on 26 July 2016 or
soon thereafter. What the respondent has
sought to do is to draw
inferences which, in my view are not consistent with the proved or
undisputed facts.
[26]
This brings me to the question whether the applicant can be deemed,
in the light of the facts, to have
the required knowledge in line
with the proviso in
section 12(3)
of the
Prescription Act. That
is
whether he could have acquired it by exercise of reasonable care.
[27]
The respondent contends that the minor child is the applicant’s
fifth baby and there is no indication
in the available records that
her earlier children had any issues at birth or otherwise.
[28]
It may very well be true that the minor child is the applicant’s
fifth baby and that the previous four
had no abnormal conditions.
However, that does not place the applicant in a position of knowing,
without more, about the facts giving
rise to the medical condition of
the baby. In my view it is unreasonable to expect or even suggest
that a person, simply by reason
that he/she has four children, she is
possessed with the knowledge about facts over which only doctors and
nurses are privy especially
where there is no evidence of her being
advised of such facts. I am unable to accept the respondent’s
argument in this regard.
[29]
The respondent also contended that the baby’s Apgar scores at birth
were low which is an indication
of foetal distress.
[30]
I find difficulty in accepting this argument or contention especially
regard being had to the fact that
Apgar scores are usually recorded
by doctors and nurses on the maternity records. They also require a
certain level of education
to read and understand. To suggest that a
grade 6 person was in a position to read and understand the meaning
of Apgar scores, without
evidence that same were explained to her,
is, in my view illogical.
[31]
Worse, there is undisputed evidence that Mrs Nonxuba, after
consulting with the applicant, undertook
to obtain the relevant
medical records of the applicant where the applicant was treated and
to arrange for the applicant to consult
with experts thereafter. This
was surely after 29 January 2020.
[32]
It should follow therefore that when the applicant consulted with Mrs
Nonxuba she was not in possession
of the medical records. Otherwise,
it would not make sense for Mrs Nonxuba to make the undertaking to
obtain same when they are readily
available and in possession of the
applicant.
[33]
In my view, the respondent’s argument that the applicant was aware
of the low Apgar scores, indicating
foetal distress, is inconsistent
with the admitted facts, speculative and must be rejected.
[34]
The argument that the applicant’s attorneys advised applicant, on
her own version, that the condition
of the child was caused by the
negligence of the hospital staff on 29 January 2020 and consequently
the applicant came to know of
the facts giving rise to the claim and
the identity of the debtor on 29 January 2020 also does not assist
the respondent.
[35]
First, if it is accepted to be so, it must follow that the notice
served on 20 July 2020 was served within
the six months prescribed in
section 3(2)(a)
of Act 40 of 2002.
[36]
Second, and in any event, an opinion by a legal representative is not
facts. This is even more in the
circumstances of this case where it
was given, on the admitted facts, without the benefit of medical
records.
[37]
The respondent sought to rely on
Loni
[1]
in support of his opposition. In my view, Loni is distinguishable
from the present case on,
inter
alia
,
two reasons. First, in
Loni
the
plaintiff had clearly visible injury which did not require diagnosis
or medical records to identify and understand and the plaintiff
therein knew what caused and who caused the injury. In the present
case it was simply impossible for the applicant to know what was
wrong with the child unless and until a proper analysis of medical
records was done and until a diagnosis is made and the outcome
thereof is communicated to the applicant.
[38]
Second, in
Loni
the plaintiff was in possession of his medical
records. In the present case, on the undisputed version of the
applicant, it was only
after the applicant had consulted with Mrs
Nonxuba on 29 January 2020 that the latter advised applicant that she
will try and obtain
medical records from the place where the
applicant was treated, an indication that the applicant was not in
possession of same.
[39]
The respondent further sought to place reliance on the minor child’s
clinical records of May 2017 in
which it is recorded,
inter alia
,
that the child had delayed milestones and is suspected of cerebral
palsy. Argument was advanced that the applicant ought reasonably
to
have been aware of, or on the basis thereof, to have investigated the
condition of the minor child and the facts, which gave rise
thereto
at least from May 2017.
[40]
I have difficulty in accepting this line of argument. There is no
record that the applicant was advised
by the nurses at the clinic or
by anyone of the cause of the suspected condition of the child.
Besides that, this piece of evidence,
especially coming from a Legal
Administration Officer of the respondent, is hearsay and highly
speculative.
[41]
In the circumstances, I am satisfied that on the evidence before me
the debt has not been extinguished
by prescription.
Good cause.
[42]
The applicant argued that she has good prospects of success in the
action proceedings. For this argument
the applicant relied on the
report of Dr Murray, an Obstetrician.
[43]
In the report Dr Murray,
inter
alia
,
states that it seems most likely that the brain injury was caused by
intrapartam hypoxia. He gives reasons for his conclusion.
[2]
[44]
Dr Murray further states that if the combined opinion of experts, on
issues identified in the report
in respect of which the Dr could not
opine, is that the hypoxic brain injury most likely occurred during
the course of labour, then
the poor monitoring of the second stage of
labour should be implicated in the causality.
[45]
A challenge was mounted against the applicant’s argument aforesaid
based on the dictum in
Swissborough
[3]
.
The argument was that the applicant has failed to identify the
portions of the report on which reliance is placed for her case.
[46]
It is important to highlight that what we are dealing with here is an
opinion by an expert, a medical
doctor. It can only be understood in
relation to the facts that support it. It follows therefore that the
applicant could not have
been expected to pick one portion thereof,
e.g. the conclusion when the conclusion’s cogency and understanding
depends on the background
facts.
[47]
In my view, and having regard to the report as a whole, the applicant
enjoys reasonable prospects of
success in the action proceedings.
[48]
On the uncontested or undisputed facts the applicant was not aware of
the child’s condition and the
probable cause thereof.
[49]
The catalyst for her action was the discussion that she had with her
sister in law who advised her to
consult with Nonxuba Attorneys which
consultation took place on 29 January 2020.
[50]
One may have reservations about her lack of action prior to that. In
my view, to expect her to act when
she thought everything was normal
and before she knew of the problem with the child would in reality be
expecting too much from a
lay person whose highest standard of
education is grade 6.
[51]
Accordingly, the explanation for the delay, if there was any, is
satisfactory. In any event I hold the
view that the delay ought to be
calculated effective from the date the applicant got information that
something was wrong with the
minor child, which was on 29 January
2020 or closer thereto.
[52]
I am therefore satisfied that the applicant has shown that good cause
exists for her failure to serve
the notice as envisaged in section 3
of Act 40 of 2002.
Unreasonable
prejudice
[53]
The respondent argued that he is unreasonably prejudiced by the
applicant’s failure because the records
relating to this matter are
no longer available and so are the witnesses.
[54]
The respondent has, however, failed to give details of when and how
the records relating to the matter
got lost. He has failed to show
how the non-availability of the records is related to the failure by
the applicant to serve the notice
timeously. This applies with equal
force to the alleged non-availability of witnesses.
[55]
There is accordingly no basis for me to conclude that that the
respondent is unreasonably prejudiced
by the applicant’s failure to
serve the notice timeously.
Costs
[56]
The general rule is that costs should follow the result. This also
applies to proceedings of this nature,
especially where the
respondent has opposed the application. I find no reason in the
present case to depart from that principle.
[57]
In the result I make the following order:
1.
Condonation for the applicant’s failure to serve her notice and for
her service of defective notice in
terms of section 3(1) of Act 40 of
2002 is granted.
2.
The respondent shall pay the costs of the application.
Z.Z.
MATEBESE
ACTING
JUDGE OF THE HIGH COURT
APPARANCES:
For
the applicant:        Adv C.
Cremen
For
the respondents:   Adv A.M. Da Silva
Date
Heard:     22 July 2021
Delivered:
03 August 2021
[1]
Loni v MEC for Health, Eastern Cape (Bisho) 2018 (3) SA 335 (CC)
[2]
Para.14 of the report
[3]
Swissborough Diamond Mines v Government of the Republic of South
Africa
1999 (2) SA 279
(T).