Special Investigating Unit v MEC for Health for the Province of the Eastern Cape and Others (3658/2016) [2021] ZAECMHC 32 (30 August 2021)

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[2021] ZAECMHC 32
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Special Investigating Unit v MEC for Health for the Province of the Eastern Cape and Others (3658/2016) [2021] ZAECMHC 32 (30 August 2021)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case No.
3658/2016
In
the matter between
THE
SPECIAL INVESTIGATING UNIT                             Applicant
and
THE MEC FOR
HEALTH FOR THE
PROVINCE OF THE
EASTERN CAPE                               First
Respondent
SS obo
LS
Second
Respondent
THE SHERIFF OF
THE HIGH COURT
MTHATHA, HM
NTSIKENI                                                  Third
Respondent
JUDGMENT
HARTLE
J
[1]
The applicant, purportedly on the basis of certain powers bestowed
upon
it pursuant to the provisions of the Special Investigation Units
and Special Tribunals Act. 74 of 1996 (“The Act”) seeks an order
granting it leave firstly to intervene and be joined as a second
defendant in a finalized action (“the action”) by the second
respondent against the first respondent under Mthatha High Court case
number 3658/16 pursuant to which damages were awarded in the
second
respondent’s favour.  Secondly, the applicant seeks an order
that a writ of execution issued in favour of the second
respondent in
that action in order to enforce payment of the judgment debt be
stayed pending finalization of the present application
and allied to
that, that the first respondent be interdicted and restrained from
paying over any amounts to the second respondent
in terms of the
order granted by the Mthatha High Court on 30 May 2019 (“the
order”).  Thirdly, the applicant prays that
the order be
rescinded and set aside.
[2]
The rescission relief is principally to allow for a reprise of the
quantum
hearing which culminated in the order with it at the helm as
the second defendant evidently in its own right. Its objective would
be to remedy certain maladministration which it alleges occurred
during the hearing having a prejudicial outcome for the first
respondent,
and which it maintains it is constitutionally mandated
and obliged to vindicate.  How it intends to vindicate the first
respondent’s
position is by raising a so-called “public
healthcare defence” to the claim which was not raised in the
litigation at a
de novo
hearing. It believes that this will
ameliorate the burden on the State to have to pay damages to the
second respondent in an exorbitant
lump sum payment for future
medical expenses whereas the first respondent is in its view well
placed to provide such services in
kind and will likely succeed with
such a defence at a new trial given the chance to interpose itself as
a defendant as it intends
by the remedy sought.
[3]
The second respondent gave birth to a daughter who is the subject of
the
litigation, (“LS”), on 21 September 2015 at the Mthatha
General Hospital.  She suffered brain damage during the course
of
the hospital’s delivery of her with resultant cerebral palsy.
The second respondent instituted an action against the first
respondent for the recovery of damages which she had suffered in her
personal and representative capacity as a result of the negligence
of
the first respondent and/or her employees.
[4]
The merits in this action were conceded by way of an order of court
dated
10 September 2018.
[5]
The trial on quantum proceeded over a period of four days during May
2019.
[6]
During the course of the trial on quantum, the first and second
respondents,
through their legal representatives, negotiated a
settlement of a number of issues/heads of damages by having regard to
the various
expert reports and joint minutes filed on behalf of the
parties.
[7]
On 13 May 2019 the second respondent led evidence on issues which the
parties
could not agree on and, after evidence had been led by her,
they finally settled the matter. This settlement was incorporated in
the order.
[8]
In the
process of settling the matter, the first and second respondents were
each represented by both a senior and a junior advocate.
The State
Attorney, Mthatha, was the attorney of record for the first
respondent in the conduct of her defence of the trial action.
[1]
[9]
The
final court order
[2]
which the
applicant believes it is both entitled and compelled to challenge on
the basis prayed for in its notice of motion
[3]
reads as follows:
“
IT
IS ORDERED THAT:
1.
The Defendant pay to the Plaintiff the sum of R375 000.00 in her
personal
capacity, as and for damages, together with interest at the
legal rate from a date 14 days after the grant of this Order to date
of payment thereof.
2.
The Defendant pay to the Plaintiff, in her representative capacity as
mother and
natural guardian of (LS), the amount of R17 267,
355.00, as and for damages together with interest thereon at the
legal rate
from a date 14 days after the granting of this Order to
date of payment.
3.
The amount set out in Paragraph 2 above include the costs occasioned
with the establishment,
registration, administration and management
of a Trust to be established for the benefit of (LS).
4.
The sums referred to in Paragraph 1 and 2 above, together with all
interest payable
thereon, if any, be paid into the Trust Account of
the Plaintiff’s Attorney, Dayimani Inc. with the following details:
Bank
Name
: First National Bank
Branch
Code

:
260553
Account
Name

:
M. Dayimani Inc.
Account
number
: 62782299195
Branch
:
MTHATHA Plaza
5.
The Defendant be ordered to pay Plaintiff’s costs of suit, together
with all
reserved costs, if any, which costs shall furthermore
include:
5.1
The costs of two Counsel;
5.2
The travelling and accommodation costs of Plaintiff’s legal
representatives attending Court
and consultation with the witnesses;
5.3
The costs of the representative for consultations and trial;
5.4
the costs of the hearing of the matter on 6, 7, 9, 10 and 30 May 2019
including Counsels’
day fees;
5.5
The travelling costs, reservation and appearance fees, if any,
together with the costs of
consultations and the preparation of their
reports and joint minutes, if any, and the qualifying fees, if any,
of the expert witnesses
in respect of whom the Plaintiff filed Rule
36 (a) and (b) notices.
6.
The net balance remaining, after paying and recovering all costs and
expenses for
which the Plaintiff is liable, including her fees as
between Attorney and own Client shall be dealt with as follows:
6.1
Dayimani Inc. are directed to cause a Deed of Trust, to be named the
“(LS) TRUST” to be
registered by the Master of the High Court
incorporating the provisions normally to be found in an inter vivos
trust within 3 months
of the date of this Order, or such longer
period as the Master may on application direct, with the following
additional provisions;
[4]
6.2
The Trustees to be appointed of their successor in title, will, if
possible, consist of three
Trustees, being the Plaintiff, a Chartered
Accountant and an Attorney, and shall have the powers of assumption;
6.3
The Trustees shall be exempt from furnishing security;
6.4
The Trustees shall hold and administer the Trust Fund for the benefit
of (LS).
6.5
The Trustees shall apply the net income of the Trust Fund for the
maintenance and benefit
of (LS) and if at any time it is not adequate
for the purpose, the capital thereof;
6.6
The Trust shall terminate on the death of (LS), alternatively in
accordance with the Trust
Deed.
7.
It is recorded that the aforementioned Trust is subject to the
provisions of the
Trust Property Control Act 57 of 1988 as amended.”
[10]
The
first respondent failed to pay the amount awarded to the second
respondent without delay in clear contravention of the provisions
of
section 3
of the
State Liability Act, No. 20 of 1957
, resulting in
her attorneys having issued out the writ of execution to attach the
first respondent’s bank account.
[5]
[11]
It is not clear how far the second respondent’s attorneys got with
the process of execution,
or if the issue of the writ in September
2019 necessarily prompted the launch of the present application
(seven months after the
grant of the order), but the present
application was issued shortly after the second respondent adopted
the requisite procedures
in terms of the
State Liability Act to
exact
payment of the award.
[12]
The
applicant’s supposed mandate and authority to achieve what the
applicant suggests is permissible by the relief it seeks has
its
basis in the fact that in the action and during the quantum trial,
the first respondent “failed in any way, manner or form
(to) raise
the ‘public healthcare defence’ whereby the First Respondent
would undertake to provide all future medical care, treatment
and/or
assistive devices and appliances at state institutions at no
alternatively nominal costs to the second respondent,” thereby
preventing the trial court from making a finding as to whether or not
the future medical services required by the child can be provided
to
her at state institutions at no or lesser costs than the first
respondent will be in for by virtue of the lump sum which her legal
representatives  agreed to pay as contemplated in the order for
such expenses.  The first respondent’s failure in turn,
so the
applicant asserts, is a result of the fact that her expert witnesses
“were never instructed by (her) legal representatives
to compile a
report regarding the suitability of the aforesaid institutions to
provide for (LS’s) future hospital and medical expenses
as well as
assistive devices and appliances, despite the fact that such evidence
was readily available (this the applicant has purported
to prove via
the present application)
[6]
and
(which) instructions ought to have been provided to them”.
The applicant further bemoans the fact that “none of the
expert
witnesses instructed by both parties” commented on the first
respondent’s ability and need to provide all future medical
care
and/or treatment as well as assistive devices and appliances at state
institutions to the child despite the fact that the provincial
Health
Department manages various institutions which are willing, able and
have the necessary capacity to provide for her future
hospital and
medical needs as well as assistive devices and appliances.
[13]
There is no dispute that the public healthcare defence was not a
feature in the action.
The second respondent, who is the only
respondent who opposes this application “admits” (for her part)
that such a “defence”
was neither raised and/or dealt with by the
experts.  Her attorney, Mr. Dayimani, who is the deponent to the
answering affidavit
on her behalf, further concedes that the first
respondent, by implication, did not instruct her legal
representatives to raise this
aspect because it never became an issue
in the trial.  However, the second respondent assures the court
that the agreement of
compromise was reasonably and responsibly
reached and the conduct of the legal representatives involved beyond
reproach.
[14]
This guarantee by the second respondent that no impropriety taints
the order or that that
the legal representatives engaged by the first
respondent did not make themselves guilty of any wrongdoing and that
such inference
is not borne out by what happened at the time when the
trial was settled, was not gainsaid by the applicant.  Indeed,
the nub
of its case and the premise for its present involvement is
instead justified on the basis set out in paragraph 12 of its
founding
affidavit which reads as follows:
“
12.1
In the light of the dictum enunciated in
NGUBANE (SUPRA) and THE
MEC FOR HEALTH AND SOCIAL DEVELOPMENT GAUTENG V DZ (SUPRA)
, the
First Respondent was obliged to raise
the public healthcare
defence and thus produce evidence that it can provide medical
treatment and/or assistive devices and/or appliances
required by the
minor child at the same or higher standard at lesser cost than
provide medical care to the minor child in the future
.
Accordingly, the failure to raise the public health care defence and
hence adduce the aforesaid evidence had prevented the
Court from
making a finding as to whether or not the private future health care
services can be provided to the minor child at state
institutions at
no lesser costs to the Second Respondent.  Consequently, the
dismal failure to raise the public health care
defence set out in the
MEC FOR HEALTH AND SOCIAL DEVELOPMENT GAUTENG V DZ (SUPRA)
as
well as NGUBANE (SUPRA) had exposed the First Respondent to a
significant financial prejudice via the award in respect of future
hospital and medical expenses in the amount of R13 241 323.00.
12.2
Accordingly, the evidence of the health care institutions set out
hereinabove which are able, amenable
and willing to provide the minor
child with physiotherapy, occupational therapy, speech and language
therapy, dietetic services as
well as orthotic assistive devices and
equipment was never placed before the Court.  Hence, the court
did not make a finding
on the public health care defence.  In
this regard, the Applicant respectfully submits that it was
this
omission and hence mal-administration of the trial action which had
exposed the First Respondent to significant damages and caused
it
potential financial loss
as envisaged by section 4 (1) (c) (i) to (iii) of the Act.
[7]
Consequently the Applicant is entitled to institute proceedings to
prevent these potential losses as authorized by the Act.
12.3
In additional to the issues outlined hereinabove, it is apparent that
the Plea filed by the First
Respondent fails to raise the public
health care defence which is a prerequisite before evidence is led
thereon.  In this regard,
I draw attention to the contents of
annexure “A3” hereto which in no way, manner or form deals with
the public health care defence
or the ability of the aforesaid
institutions to provide for the minor child’s future hospital and
medical expenses as well as assistive
devices and appliances.
12.4
Accordingly, there was a genuine
bona fide
defence available
to the First Respondent which was never placed before the Court and
notwithstanding the fact that the First Respondent
had instructed a
plethora of expert witnesses in the domains of occupational therapy,
physiotherapy, speech and language therapy,
dietetic services and
orthotics.  It is respectfully submitted that it is this
omission which has prompted the present application
for the
intervention sought herein in order to ensure that this defence is
placed before the Court whereupon the Court would be in
a position to
make an appropriate value judgment regarding the claim for the minor
child’s future hospital and medical treatment
as well as assistive
devices and appliances.  It hence appears that the trial action
was mal-administered by the First Respondents
legal representatives
who despite being aware of the public health care defence failed to
instruct expert witnesses to comment thereon
and to place evidence
regarding same before the court which would have drastically reduced
the Plaintiff’s claim for future hospital
and medical expenses.”
[15]
The
issue for determination is whether this claimed “maladministration”
can be brought within the framework of the applicant’s
terms of
reference as set out in the Proclamation on which it relies, and
whether it was justified in launching the present proceedings
for the
reasons claimed by it.
[8]
[16]
Evidently
the applicant in its founding affidavit puts the offending behaviour
at the core of its entitlement no higher than
“maladministration”
and a dismissal failure or omission on the part of the “first
respondent” (sic) that has caused “potential
loss” to the
Department.
[9]
It
interchangeably attributes the alleged maladministration to the first
respondent, the expert witnesses engaged by her and unidentified
legal representatives (who have incidentally not been joined in these
proceedings).  As an aside no finger has been pointed
at the
second respondent or her legal representatives for having played a
role in the contended for maladministration. Indeed, the
second
respondent and LS are innocent victims of this unfortunate saga who
have been denied the right to execute on a legitimate
order of this
court on the premise that the applicant has superlative powers in
terms of the Act to interpose itself in the finalized
action and go
back to square one, as it were, to undo the perceived harm that the
Act seeks to protect.
[17]
As can be seen above, the applicant relies on two judgments in
support of its contention
that the first respondent’s mere failure
to have raised the public healthcare defence constitutes
maladministration within the
meaning of the Act and the proclamations
on which it relies, thus bestowing on it the power and obligation to
vindicate the first
respondent’s position.
[18]
The
first of these is Ngubane v SA Transport Services
[10]
.
In this matter the Supreme Court of Appeal held that evidence by the
plaintiff of the cost of the use of private medical services
and
hospital facilities would discharge the onus of proving the costs of
those expenses “
unless,
having regard to all the evidence, including that adduced in
support of an alternative and cheaper source of medical
services,
[11]
it can be
said that the plaintiff has failed to prove on a preponderance of
probabilities that the medical services envisaged
are reasonable, and
hence that the amounts claimed are not excessive.”
[12]
(The court in MSM obo KBM v MEC for Health, Gauteng Provincial
Government
[13]
refers to this
as ‘the mitigation of healthcare costs defence.”)
[19]
The
second is MEC for Health & Social Development Gauteng v DZ obo
WZ
[14]
in which the
Constitutional Court, far from confirming that “the public
healthcare defence” is a general defence available to
Health
Departments, held that it is open to a court to develop the common
law to allow for payments in kind or periodic payments
instead of a
lump sum payment if the factual foundation is established for such a
development in any particular case.
[20]
In
MEC for Health, Gauteng Provincial Government v PN
[15]
the Constitutional Court reaffirmed this principle that High Courts
have the power to develop the common law and that the MEC for
Health
can,
where
the issue of damages has not yet been finalized
,
amend his/her plea to request that the common law be developed
(assuming a proper factual foundation exists therefor), whether the
action was issued, or the merits decided before DZ.
[21]
The
court in MSM obo KBM v MEC for Health, Gauteng Provincial
Government
[16]
indeed went on
to the develop the common law following the Constitutional Court’s
prompt in DZ, finding that certain medical services
required by the
child, who suffered a similar fate to LS, were capable of being
provided by specialists at the Charlotte Maxeke Johannesburg
Academic
Hospital in that scenario, a public health care facility, and that
the MEC should be ordered to render such services to
the child and
the mother at the hospital with a fall back option that if the
hospital is unable to do so, the mother would be entitled
to approach
the judge in chambers for an order directing the MEC to pay them the
amount claimed for the relevant service.
[22]
The
applicant contends that these judgments “are the relevant
applicable legal principles” which “permit” the first
respondent
to provide for all the child’s future medical aid and/or
treatment as well as assistive devices and/or appliances at state
institutions.
[17]
[23]
Regarding
the question whether if such a defence had been raised it might have
made  a difference at the trial in
this
action (and not merely in principle), the applicant averred that
“based on investigations conducted with the Department” it has
learnt that the first respondent operates various hospitals in the
Eastern Cape with cerebral palsy units, and contends that these
hospitals are adequately equipped with staff and equipment to provide
the specific services required by the child which for the moment
are
intended to have been compensated for by the order sought to be
impugned to the tune of R13 241 323.00.
[18]
(The applicant co-incidentally claims that this is the extent of the
harm by the omission of the first respondent’s legal
representative
to raise the public health care defence which it seeks to correct.)
Additionally, the applicant alleges that
the institutions operated by
the first respondent at the listed hospitals are “able, willing and
amenable” to provide the child
with the listed services, which are
instead compensated for by the lump sum damages award.
[24]
The first respondent has not opposed the application or taken any
view on the drastic remedy
sought, leaving the applicant to proclaim
that the relief sought is justified because the court is dealing with
“blatant unanswered
maladministration.” The third respondent has
also not opposed the application.  The second respondent however
opposed the
application and raised several points
in limine
.
These are summarized as follows:
24.1
the delay in launching the application and concomitant failure to
seek condonation for such delay;
24.2
the applicant’s lack of
locus standi
;
24.3
the impermissibility of the applicant being entitled to be joined as
a party in the finalized action;
24.4
whether the applicant is entitled to rescind the order made under
circumstances where the matter was settled by way
of compromise
between the first and second respondents;
24.5
whether the applicant has established an entitlement to lead
additional evidence at the trial which has already been
finalized;
and
24.6
whether the applicant is entitled to the relief it seeks in the
notice of motion.
[19]
[25]
The Act, as last amended by section 8 of the Judicial Matters
Amendment Act, No. 11 of 2012
(“the amendment act 2012”) has a
far-reaching purpose as is indicated by its long title:
“
To
provide for the establishment of Special Investigating Units for the
purpose of investigating serious malpractices or maladministration
in
connection with the administration of State institutions, State
assets and public money as well as any conduct which may seriously
harm the interests of the public and of instituting and conducting
civil proceedings in any court of law or a Special Tribunal in
its
own name or on behalf of State institutions; to provide for the
revenue and expenditure of Special Investigating Units; to provide
for the establishment of Special Tribunals so as to adjudicate upon
civil matters emanating from investigations by Special Investigating
Units; and to provide for matters incidental thereto.”
[26]
Section 4 (1) (c) on which the applicant relies to justify the
institution of the present
application was introduced by the
amendment act 2012.  Prior to the amendment the SIU was entitled
to institute proceedings
only in a Special Tribunal if, arising from
its investigations, it had obtained evidence substantiating any
allegation contemplated
in section 2 (2).
[27]
The amended section 4 (1) (c) authorizes the applicant to institute
and conduct civil proceedings
in both a Special Tribunal and “any
court of law”. What it would seek to achieve in either forum,
assuming the exercise of such
litigating function being within the
Unit’s framework of its terms of reference as indicated by the
relevant proclamation in each
instance, includes:
“
(i)
any relief to which the State institution concerned is entitled,
including the recovery of
any damages or losses and the prevention of
potential damages or losses which may be suffered by such a State
institution;
(ii)
any relief relevant to any investigation; or
(iii)
any relief relevant to the interests of a Special Investigating
Unit.”
[28]
Section 5 (5) was also introduced by the amendment act 2012.  It
provides that:
“
Notwithstanding
anything to the contrary in any law and for the performance of any of
its functions under this Act, a Special Investigating
Unit may
institute and conduct civil proceedings in its own name or on behalf
of a State institution in a Special Tribunal or any
court of law.”
[29]
The Memorandum on the objects of the Judicial Matters Amendment Bill,
2012, with particular
regard to clauses 3 and 4 that we are presently
concerned with, clarified the basis for the changes as follows:
“
2.
OBJECTS OF BILL
2.1 Clauses 1, 3,
4 and 5
The
amendments proposed by clauses 1, 3, 4 and 5 of the Bill seek to
further regulate the litigation functions of an SIU in terms
of the
SIU Act. The original purpose behind the enactment of the SIU Act was
to create a mechanism in terms of which civil litigation
flowing from
the investigations by an SIU into serious cases of malpractice
(including corruption) and maladministration could be
dealt with more
speedily. The mechanism for this, namely a dedicated Special Tribunal
created by sections 2(1)(b) and 7 to 10 of
the SIU Act, is intended
to adjudicate on matters brought before it by a dedicated SIU which,
in turn, was directly involved in the
investigation of the matters in
question.
This
intention manifests itself clearly in the long title and in section
4(1)(b) and (c) of the SIU Act, which provides for—
•
the
establishment of SIU’s for the purpose of investigating serious
malpractices or maladministration in connection with the
administration
of State institutions, State assets and public money
as well as any conduct which may seriously harm the interests of the
public
or any category thereof, and for the establishment of Special
Tribunals so as to adjudicate upon civil matters emanating from
investigations
by any SIU; and
•
the
functions of an SIU, which are, amongst others, to collect evidence
regarding acts or omissions relevant to its investigations
and, if
applicable, to institute proceedings in a Special Tribunal against
the parties concerned, and to present evidence in proceedings
brought
before a Special Tribunal.
However,
this clear purpose has been affected by some decisions of our courts
of law that severely limit the locus
standi in iudicio
of an
SIU.
The proposed amendments are therefore intended to allow an
SIU to litigate on behalf of State institutions
.
One
of the reasons for affording an SIU this power to litigate on behalf
of State institutions is to assist with the recovery of losses
suffered by State institutions as a result of serious malpractice
(including corruption) and maladministration. Generally, a State
institution may recover losses through the Office of the State
Attorney. However, in instances where the State institution neglects
to recover such losses, an SIU can be used for this purpose.
”
(Emphasis added)
[30]
In
South
African Association of Personal Injury Lawyers v Heath
[20]
and others the Constitutional Court observed that there can be no
quarrel with the purpose sought to be achieved by the Act or the
importance of that purpose.  The court also reflected on the
peculiar tension that exists between the need on the part of
government
to confront threats to the democratic state, and the
obligation on it to do so in a manner that respects the values of the
Constitution.
[21]
[31]
As was stated by the court:
“
Corruption
and maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution. They undermine
the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms. They
are
the antithesis of the open, accountable, democratic government
required by the Constitution. If allowed to go unchecked and
unpunished
they will pose a serious threat to our democratic state.
There can be no quarrel with the purpose sought to be achieved by the
Act,
or the importance of that purpose.
That
purpose must, however, be pursued in accordance with the provisions
of the Constitution.
”
[22]
(Emphasis added)
[32]
Whilst corruption clearly constitutes criminal conduct, malpractice
and maladministration
are less damning concepts but, assuming them to
be of serious proportion, cause the same harm to the democratic
state.
[33]
Neither concept is defined in the Act but imply linguistically the
opposite of regular practice
or administration in the conduct of the
affairs of state institutions. Regular practice or administration
would be consistent with
the proper exercise of public powers within
the bounds of the Constitution.
[34]
This “special” machinery that avails the applicant, which
empowers it to go beyond routine
investigations conducted by
conventional law enforcement agencies, combined with its authority to
litigate in its own name or that
of the state institution in order to
claim relief
relevant
to any investigation, or in its
interests (which can only concern parochial interests related to the
performance of its mandated
functions), or any relief
to which the
state institution concerned is entitled
, must of course be
pursued strictly in accordance with the provisions of the
Constitution.
[35]
The proclamation on which the applicant relies for its entitlement to
bring these proceedings
(emanating from its investigations conducted
by its terms of reference) provides the starting point for the
enquiry.
[36]
Proclamation
R.21 of 2018
[23]
reads as
follows:
“
Proc
R.21 of 13 July 2018:  Referral of matters to existing
Special Investigating Unit
(
Government Gazette
No.
41771)
as
amended by
Notice
Government
Gazette
Date
R.33
42577
07/12/19
“
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
WHEREAS
allegations as contemplated in section 2 (2) of the
Special Investigating Units and Special Tribunals Act,
1996 (Act No.
74 of 1996) (hereinafter referred to as the “Act”), have been
made in respect of the affairs of the Department
of Justice and
Constitutional Development in so far as it relates to the office of
the State Attorney and all branches thereof, established
in terms
of section 1 of the State Attorney Act, 1957 (Act No.
56 of 1957) (hereinafter referred to as “the office
of the State
Attorney”);
AND
WHEREAS the office of the State Attorney or the State suffered losses
that may be recovered;
AND
WHEREAS I deem it necessary that the said allegations should be
investigated and civil proceedings emanating from such investigation
should be adjudicated upon;
NOW,
THEREFORE, I hereby, under section 2(1) of the Act, refer the matters
mentioned in the Schedule in respect of the office of the
State
Attorney, for investigation to the Special Investigating Unit
established by Proclamation No. R. 118 of 31 July 2001 and determine
that, for the purposes of the investigation of the matters, the terms
of reference of the Special Investigating Unit are to investigate
as
contemplated in the Act, any alleged–
(
a
)
serious maladministration in connection with the affairs of the
office of the State Attorney;
(
b
)
improper or unlawful conduct by employees or officials of the office
of the State Attorney;
(
c
)
unlawful appropriation or expenditure of public money or property;
(
d
)
unlawful, irregular or unapproved acquisitive act, transaction,
measure or practice having a bearing upon
State property;
(
e
)
intentional or negligent loss of public money or damage to public
property;
(
f
)
offence referred to in Parts 1 to 4, or section 17, 20 or 21 (in so
far as it relates to the aforementioned
offences) of Chapter 2 of the
Prevention and Combating of Corrupt Activities Act, 2004 (Act No.
12 of 2004), and which offences
were committed in connection with the
affairs of the office of the State Attorney; or
(
g
)
unlawful or improper conduct by any person, which has caused or may
cause serious harm to the interests
of the public or any category
thereof,
which
took place between 1 January 2013 and the date of publication of this
Proclamation or which took place prior to 1 January 2013
or after the
date of publication of this Proclamation, but is relevant to,
connected with, incidental or ancillary to the matters
mentioned
in the
Schedule or involve the same persons, entities or conduct
investigated under authority of this Proclamation,
and to exercise or
perform all the functions and powers assigned to or conferred upon
the said Special Investigating Unit by the
Act, including the
recovery of any losses suffered by the office of the State Attorney
or the State, in relation to the said
matters in
the
Schedule
.
⃰
Given
under my Hand and the Seal of the Republic of South Africa at
Johannesburg this 10th day of July Two thousand and eighteen.
(Signed)
CM
RAMAPHOSA
PRESIDENT
By
Order of the President-in-Cabinet:
(Signed)
TM
MASUTHA
MINISTER
OF THE CABINET
SCHEDULE
[Sch.
substituted by Proc R.33 of 12 July 2019.]
1.
For purposes of this Schedule the expression
“legal services” must be interpreted to include legal advisory
services; litigation
services; appointment of legal practitioners to
render legal advisory or litigation services; any professional
service required for
legal or litigation purposes, including the
appointment of any intermediary or subject matter expert; and support
services for legal
or litigation purposes, including the appointment
of any interpreter, transcriber or tracer.
2.
Maladministration in connection with the affairs of the office of the
State Attorney in relation to―
(
a
)
legal services that were provided, or procured, by the office of the
State Attorney in the performance of
its functions as contemplated
in section 3 of the State Attorney Act, 1957 (Act No.
56 of 1957), on behalf of―
(i)
the Gauteng Department of Health and the Eastern Cape Department of
Health in respect of claims based
on medical negligence; or
(ii)
the South African Police Service in respect of claims based on
wrongful arrest or detention, assault or malicious
prosecution; or
(
b
)
the verification, approval or processing for payment of any invoice
or account received in relation to legal
services provided or
procured in terms of paragraph (
a
)
.
3.
The procurement of legal services, as contemplated
in paragraph 2 (
a
) of this Schedule, by
the office of the State Attorney, or payments which were made in
respect thereof, in a manner that was―
(
a
)
not fair, competitive, transparent, equitable or cost-effective; or
(
b
)
contrary to manuals, policies, procedures, prescripts, instructions
or practices of, or applicable to the
office of the State Attorney,
and
any related unauthorised, irregular or fruitless and wasteful
expenditure which the Department or the State incurred as a result
thereof.
4.
Any unlawful or irregular conduct by—
(
a
)
employees or officials of the office of the State Attorney; or
(
b
)
any other person or entity,
relating
to the allegations referred to in paragraphs 2 or 3 of this
Schedule.”
[37]
The applicant’s terms of reference were not challenged by the
second respondent, and it
can therefore be accepted for present
purposes that the validity of the proclamation is not in issue and
that the scope thereof can
be brought within one or other of the
grounds referred to in section 2 (2) of the Act.
[38]
The
latter section provides that the President may whenever he deems it
necessary on account of any of the grounds mentioned
in sub-section
(2) by proclamation in the Government Gazette refer the matter to an
existing special investigating unit for investigation.
[24]
The applicant claims to be such a unit and is indeed legitimately
seized with an investigation as is provided for by its terms
of
reference.
[39]
Section 4 (1)(a) – (h) of the Act confirms that the functions of a
special investigating
unit (within the framework of its terms of
reference as set out in the proclamation referred to in section 2 (1)
of the Act) are
to:
“
(
a
)
to investigate all allegations regarding the matter concerned;
(
b
)
to collect evidence regarding acts or omissions which are relevant to
its investigation;
(
c
)
to institute and conduct civil proceedings in a Special Tribunal or
any court of law for—
(i)
any relief to which the State institution concerned is entitled,
including the
recovery of any damages or losses and the prevention of
potential damages or losses which may be suffered by such a State
institution;
(ii)
any relief relevant to any investigation; or
(iii)
any relief relevant to the interests of a Special Investigating Unit;
(d
)
to refer evidence regarding or which points to the commission of an
offence to the relevant prosecuting
authority;
(
e
)
to perform such functions which are not in conflict with the
provisions of this Act, as the
President may from time to time
request;
(
f
)
from time to time as directed by the President to report on the
progress made in the investigation
and matters brought before the
Special Tribunal concerned or any court of law;
(
g
)
upon the conclusion of the investigation, to submit a final report to
the President; and
(
h
)
to at least twice a year submit a report to Parliament on the
investigations by and the activities,
composition and expenditure of
such Unit.”
[40]
Self-evidently
the applicant must concern itself only with the mandated
investigation and would have to justify that arising from
that which
it is entitled to investigate that a basis exists to institute and
conduct civil proceedings to claim any relief
to
which the State institution itself is entitled
.
Although the applicant is now authorised to institute these
proceedings in place of the State institution concerned nothing has
changed in my view since the last amendment to the Act in the sense
that the proclamation does not give the applicant the right to
relief
where no such right would otherwise have been available to that
institution itself.
[25]
The
proclamation certainly does not grant the applicant the power to take
over the functions of decision making institutions
or functionaries,
or such as in this instance, to revisit or question the basis for an
agreement of compromise that comes at the
end of the conduct of a
lengthy trial to settle a court action.
[41]
The applicant’s insists that its discovery, pursuant to its
investigation of the
state attorney’s affairs, of the simple fact
that the public health care defence was not raised in the conduct of
the first respondent’s
defence of the action,
per se
elevates it to the kind of serious maladministration envisaged under
section 2 (2) and as outlined in its  terms of reference,
which
must according to the applicant now fall to be vindicated pursuant to
the provisions of section 4 (1) (c)  of the Act
by the relief
which it presently seeks.
[42]
Indeed, the applicant appears to accept further as a certainty, based
simply on the principles
stated in Ngubane and DZ, that the second
respondent would have been “disentitled” to expenses for future
hospital and medical
treatment in the amount of R13 242 323.00.
The fallacy of this argument is in the applicant’s own recognition
that only
a court can make such a value judgment, that is, whether in
any particular case a basis exists to depart from the traditional
manner
of compensating a claimant in a lump sum for future medical
expenses on the basis of the public healthcare defence, which has
only
recently gained serious traction.
[43]
As for
the principle enunciated in Ngubane, which was decided in 1991
already, is the applicant seriously suggesting that in every
case
where the Health Department failed to counter the plaintiff’s proof
of future medical expenses based on the cost of the use
of private
medical services and hospital services with evidence of a
sufficiently cogent nature to disturb the presumption that such
(private healthcare) care was reasonable by producing evidence that
medical services of the same or higher standard, at no or lesser
cost
than private medical healthcare would have been available to the
plaintiff in future (in other words by invoking the “mitigation
of
healthcare costs defence”), that such an omission automatically
falls to be brought within the purview of the Proclamation to
be
investigated and vindicated on the basis envisaged by section 4 (1)
(c) of the Act long after that proverbial stable door has
closed?
[26]
I think not.
[44]
In any
event the Constitutional Court has endorsed that this novel approach
in moving for an order that falls outside of the ordinary
prescripts
of the law of delict (referring to the “once and for all rule”),
by raising the public healthcare defence which requires
a particular
value judgement to be made in order to determine whether it is
justified in any particular case, avails a Health MEC
in cases where
the issue of damages has not yet been finalized.
[27]
[45]
Nothing other than the first respondent’s failure (including
the state attorney,
Mthatha’s, or its legal adviser’s by
implication since their services were engaged to advise her in
respect of the conduct of
her defence of the action) to have pleaded
or raised the public healthcare defence or to have adduced evidence
in support of such
a defence has been ringfenced by the applicant as
constituting the unlawful or improper conduct sought to be vindicated
by the launch
of these proceedings.
[46]
In my view it is doubtful that a mere failure to raise the defence,
whether or not such a
defence may have been a sustainable one to use
the applicant’s expression and might have made a difference to the
outcome of the
action, constitutes the kind of serious misconduct
contended for in the Act or as specified in the terms of reference
without more.
[47]
It is
the State Attorney’s conduct that was intended to be put under the
scope by the Proclamation in question and that of the legal
advisor’s
procured by them, but we are none the wiser in this instance
regarding who the responsible persons are who or against
what
standard such person’s conduct is to be measured as falling short
and constituting “serious maladministration in connection
with the
affairs of the office of the state attorney” in the context of
claims based on medical negligence against, in this instance,
the
Eastern Cape Department of Health.
[28]
Who is seriously going to suggest that in the thousands of similar
cases that have gone before the legal advisors employed
did not
professionally apply their minds to the settlement orders that were
granted or in persuading the court through the testimony
adduced that
the plaintiffs’ claims for future medical expenses was reasonable
in each instance? Was there a circular or an office
directive or
something compelling that person or office to have acted differently
than the professional standard employed by them
in this case under
discussion or the several that have gone before? It has not even been
suggested that the responsible person might
have made himself guilty
in this instance of professional negligence by failing to have
pleaded or to have raised the public healthcare
defence or to have
tendered evidence in support of such defence.
[48]
Whilst
the schedule of the category of cases the applicant is entitled to
look into is very broad, the Constitutional
mandate is to investigate
and litigate only in respect of serious instances of corruption and
maladministration as envisaged by the
Proclamation in question.
Even though this country has been seriously vexed by the issue of the
Health Departments’ liability
to pay out increasingly large damage
awards in medical negligence cases, and the inevitable reduction in
resources to meet its constitutional
obligation progressively to
realize the right to health care services for the general public in
the ordinary course, this fact does
not elevate that concern to a
matter of serious maladministration within the meaning of the Act or
the Proclamation.
[29]
The fact that the judiciary has recently contributed in large measure
to finding a solution in concluding that the common law
may be
developed, and then in fact developing the common law in the instance
of MSM (after taking into account all the interests
of all the
concerned parties), demonstrates that we are dealing with a bigger
problem that requires judicial innovation and legislative
reform.
This kind of correction, under the guise of the Act, does not fit in
with the Act’s clear purpose stated in its long title
and should
not be countenanced in violation of the second respondent and other
litigant’s rights to finality in their litigation
based on a mere
finding under the mantle of the current investigation that the
state’s legal advisors simply failed to raise the
public healthcare
defence.
[49]
I
cannot agree therefore that the applicant has made out a case to
bring the omission it complains of within the ambit of the
Proclamation
and in the circumstances its supposed jurisdiction to
vindicate this complaint as one emanating from its investigations
(which I
assume for present purposes was at least validly enquired
into) on one or other of the three grounds provided for in section 4
(1)
(c) (the applicant incidentally could not even pick one of them),
holds no water.
[30]
[50]
The
applicant incidentally submitted that it was “entitled to institute
the present proceedings” as these proceedings are “similar
in
nature” and aimed at preventing the payment of the sums of money by
the first respondent which it believes, if the public health
care
defence can be raised by it (or the first respondent) in a revised
quantum trial, will ameliorate the Department of Health suffering
“damages” or “losses” as contemplated by this subsection.
Confusingly it also refers to “potential losses” which it seeks
to protect, this no doubt borne out by the fact that the damages
award has yet to be paid over to the second respondent.
[31]
Patently the applicant has lost sight of the fact that the first
respondent has not suffered damages or an abstract loss.  She
was ordered by the court to pay this sum of monies to the second
respondent as damages for her loss of patrimony (in respect of her
anticipated future medical expenses) based on the negligence of the
first respondent’s servants. It is also simply ludicrous to
suggest
that we are here dealing with a potential loss and that the applicant
is justified in preventing this whereas the Department
is inexcusably
in breach of its obligations to meet payment of the judgment debt. I
would be more concerned that the first respondent’s
advisors are
overlooking the Department’s accounting officer’s financial
misconduct in not paying the judgment debt to the second
respondent
thereby permitting unnecessary interest to accrue.
[51]
I accordingly conclude, in favour of the second respondent, that the
applicant has no
locus standi
to seek the relief which it
does. This is because the contended for “maladministration” has
not been brought within the ambit
of the applicant’s terms of
reference.  The dispute or complaint as identified by the
applicant therefore does not fall to
be adjudicated upon in terms of
section 4 (1) (c) of the Act.    I believe that this
finding is dispositive of the
matter.
[52]
The second respondent filed an application in terms of rule 6
(5)(d)(iii) and (e) to request
that the court deal with her
preliminary objections separately before at the hearing on the basis
that these would be dispositive
of the matter.  The applicant
vociferously opposed this application in lengthy papers filed and
even raised an objection of
its own that the application was not
supported by an affidavit of the second respondent herself.
[53]
It is unnecessary for me to determine this interlocutory
application.  The second respondent
properly referred to all the
preliminary objections in her answering affidavit already (in respect
of which the second respondent
endorsed her support by way of a
confirmatory affidavit) and the applicant could not have been under
any illusion that these would
not be argued at the hearing, yet Mr.
Namkan who appeared for the applicant insisted that the issue of
maladministration was so inextricably
interwoven with these that I
could not fairly dispose of the matter on the basis proposed by Mr.
Schoeman who appeared for the second
respondent.  Mr. Namkan’s
understanding of what this court was supposed to determine however,
in order to conclude whether
there was maladministration, was whether
the public healthcare defence was sustainable or not, which misses
the more significant
point of whether or not the
alleged
misconduct could be brought within the purview of the Proclamation.
[54]
I do not blame the second respondent for bringing the interlocutory
application out of caution
and for the several reasons stated
therein.  It was said to be necessitated by the very late filing
of the applicant’s replying
affidavit, together with two other
interlocutory applications, the one being for condonation and the
second asking this court to
strike out certain averments made by Mr.
Dayimani in his affidavit which the applicant thought prejudicial to
its assertion that
the public health care defence was “sustainable”
in all the circumstances.
[55]
The second respondent was not inclined unnecessarily to oppose
the application for
condonation indicating that she did not wish to
incur additional costs and/or potentially protract the matter
further.  She
fairly conceded that she would abide the court’s
decision in this respect but nonetheless still recorded her objection
that the
replying affidavit was delivered hopelessly out of time
(some eight months after the answering affidavit had been delivered
and twelve
court days before the hearing of the matter); that it
relates almost exclusively to the sustainability argument in respect
of the
public health care defence; that it is unnecessary prolix (it
runs into more than 300 pages), contains repetitive matter, legal
argument
and content that does not take the matter further; that it
contains allegations which ought to have been made in the applicant’s
founding papers; that its timing (in respect of its filing) and the
voluminous nature thereof appears to have been a stratagem on
the
applicant’s part to force a postponement of the matter; and that
she had been cumulatively prejudiced by the applicant’s
conduct of
the proceedings in this respect.
[56]
All of these objections to my mind have merit.  I am further
inclined to agree with
the submission made on behalf of the second
respondent that the application for condonation fails to properly
explain the time lapses,
why the applicant had not adhered to its own
undertakings given regarding the conduct of the proceedings or why it
had not adhered
to the case flow management directives issued in the
matter.  The issue of the application at all has had huge
implications
for LS and her mother who have still not enjoyed the
benefit of the compensation awarded and would in my view - according
to the
accommodation the applicant sought by the time the matter was
argued before me to instead refer the matter  for the hearing
of
oral evidence to determine the merits of the public health care
defence  (against the objection on the part of the second
respondent  that she had  not had adequate time at her
disposal to file a rejoinder to the volume of fresh papers she had
been served with at the doors of the court to deal with the merits of
such defence), have caused further unnecessary delay and hardship.
[57]
The second respondent’s acceptance for present purposes that the
public health care defence
was not raised as an issue at the quantum
trial (without agreeing that this constituted maladministration for
purposes of bringing
the application within the ambit of the Act and
relevant Proclamation) in my view offered a practical solution to the
conundrum.
I add that I did have regard to the replying
affidavit to gauge the applicant’s views in response to the
preliminary objections.
However, I do not consider it necessary to
have regard to the merits of the public health care defence at all.
(In an ordinary
application for rescission a defendant need do no
more than establish a
prima facie
defence likely to succeed at
trial.)
[58]
It was also unnecessary in my view to deal with the striking out
application because Mr.
Dayimani’s view of the sustainability or
not of the public health care defence (assuming the applicant was
ever to get over the
hurdle of interposing itself in the finalized
action on the basis of the joinder and intervention relief sought)
was not an issue
that needed to be determined.  I accept that
such a defence notionally existed but was not taken in the litigation
for reasons
that I am certain the first respondent can explain.
[59]
Regarding the issue of costs, these must follow the result.  The
second respondent prayed
for costs on a punitive scale.  I am
inclined to agree with Mr Schoeman that the second respondent was
unnecessarily put to
costs that will not be recovered on the party
and party scale and that this court should express its displeasure at
the way in which
the applicant has conducted itself in the matter.
[60]
In the premises I issue the following order:
1.
The application is dismissed with costs on the scale of attorney and
client, such costs to include the costs
of two counsel.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
20 November & 10 December 2020
DATE
OF JUDGMENT:          *30
August 2021
*Judgment
delivered electronically on this date by email to the parties.
APPEARANCES
:
For the applicant
: Mr. S Nankan instructed by W T Mnqandi & Associates, Mthatha
(ref. WTM/ZT/SUI006).
For
the first respondent : NIL.
For
the second respondent : Mr A D Schoeman SC together with Mr. L
Sambudla instructed by Dayimani Inc., Mthatha (ref. Mr Dayimani).
For
the third respondent : NIL.
[1]
Neither
the State Attorney, nor Solicitor-General, appointed in terms of
section 2 of the State Attorney Act, No. 56 of 1957 (the
latter
after the launch of the present application) were joined in these
proceedings despite the taint of impropriety made against
the State
Attorney, Mthatha, of maladministration.  As an afterthought
the applicant alleged in its replying affidavit that
the State
Attorney has indicated via correspondence that it did not wish to
participate in the matter and that it would abide the
order of this
court. This correspondence was identified as an annexure to the
applicant’s replying affidavit, but was evidently
not attached.
[2]
A “final court order” is defined in
section 4A
of the
State
Liability Act, No. 20 of 1957
, well at least for purposes of
execution, as one given or confirmed by a court of final instance;
or given by any other court where
the time of noting an appeal
against the judgment or order to a higher court has expired and no
appeal has been lodged.  There
is no question that we are
dealing here with a final court order.
[3]
The applicant does not challenge the issue of liability in the trial
action and the earlier order granted on 10 September 2018.
Its
concern is only with the quantum order which it seeks to rescind in
its entirety, even though the part of the award representing
the
agreed to compensation for future medical expenses is in the sum of
only R13 241 323.00.
[4]
It
is not clear if the trust has been established yet.  I suspect
however that it has not yet been registered for two reasons.
Firstly, the award payable in terms of the order was never paid to
the second respondent’s attorneys and, secondly, no trustees
were
cited in the present application on the basis of the obvious
interest that they would have in the present proceedings.
[5]
Ironically
the failure of the accounting officer of the provincial health
Department to have paid the judgment debt timeously constitutes
financial misconduct as referred to in the
Public Finance Management
Act, No. 1 of 1999
, and constitutes an offence.  See
section 3
(16)(a) of the
State Liability Act.  The
issue of the present
application seems however to have deftly diverted the attention away
from this misconduct.
[6]
More
so in its replying affidavit.
[7]
These
are distinct subsections yet were indiscriminately lobbed together
by the applicant.
[8]
Subsection
4 (1) (c) has to be read together with the preamble to
section 4.
All functions exercised by the SIU both investigative and litigative
must be within the terms of reference of the authorising

proclamation.
[9]
The
applicant appears to equivocate regarding whether there has been a
loss that must be recovered and a potential loss which can
be
prevented by the proposed relief it seeks.
[10]
1991
(2) SA 756 (A).
[11]
While a plaintiff bears the general onus to prove his/her damages
and the quantum thereof, a defendant would be required to adduce
evidence in support of his/her contention, that is to say, that for
the period over which the anticipated provision of medical
services
will be required, or for some shorter period, medical services of
the same, or an acceptably high, standard will be available
to the
plaintiff at no cost or for less than that claimed by him/her.
[12]
At paras 22-22.
[13]
2020
(2) SA 567
(GJ) at par 27.
[14]
2018
(1) SA 335 (CC).
[15]
[2021]
ZACC 6
at para
[26]
.  This judgment was delivered on 1 April
2021 after the launch of the present application.
[16]
Supra
.
This judgment was delivered on 18 December 2019.
[17]
In
its replying affidavit the applicant referred to a further order
granted by this court on 13 August 2015 in Putuma v Member of
Executive Council responsible for Health in the Eastern Cape
Province (Mthatha Case No. 2572/13) on the basis of which it was

contended that the MEC could have been under no illusion regarding
her obligation to raise the public health care defence because
it
had effectively been employed in Putuma before. (See the excerpt
from paragraph 12 of the applicant’s founding affidavit where
it
sought to stress both the obligation on the part of the first
respondent to have raised the defence and lead evidence thereanent,
and that she was
aware
of such obligation.) The relevant paragraphs of the innovative order
provide as follows:
“
7.
The defendant is directed to provide free of charge to the plaintiff
and (K) the medical services and medical supplies itemized in
annexures ‘B’ and ‘C’ to this order at the Nelson Mandela
Academic Hospital (“the Hospital”) (or a public hospital
nominated by the chief executive officer of the Nelson Mandela
Academic
Hospital) for the duration of their lives, or such other
duration as may be specified in any particular instance in annexures
‘B’
and ‘C’ of this order, provided that in relation to the
medical supplies itemized in annexure ‘C’ to this order, the
defendant
may provide free of charge to the plaintiff and (K) any
generic equivalent medical supplies.
8.
The defendant undertakes that all equipment to be
provided in terms
of Annexure ‘B’ and ‘C’ will be of a standard equivalent to
that as stipulated in the various expert
reports filed of record or
alternatively as provided in the private health care sector or at an
acceptably high standard.
9.
The defendant furthermore undertakes that all services
to be
provided in terms of Annexure ‘B’ and ‘C’ hereto will be of
a standard equivalent to that as provided in the private
sector or
alternatively at an acceptably high standard.
10.
In order to access all the medical services and medical supplies
itemized in annexure ‘B’ and ‘C’ to this order at the
Hospital as and when they become due, the Deputy Director: Clinical
Support Services will act as liaison person.  The present
incumbent is Mr SG Tshaka ...  The defendant undertakes to
notify the plaintiff’s attorney and the (K)Trust in writing of any
change of the incumbent within 14 (fourteen) days of such
occurrence.
11.
The defendant shall furnish the plaintiff and the Trust with
all
tests results undertaken in terms of this order within 14 (fourteen)
days of such results having become available.
12.
Either party may apply to this court in terms of
rule 6
of the rules
of this court for the variation of annexure ‘B’ and ‘C’ on
good cause shown and/or for the enforcement of
this order.”
[18]
The
applicant purported in reply and at great length to bolster its case
that the public healthcare defence was a sustainable one
in the
circumstances of the second respondent’s claim. This attention to
the issue was ostensibly prompted by Mr Dayimani’s
criticism that
the applicant’s conclusion that the defence was a slam dunk as it
were, was based on hearsay evidence concerning
the aspect of what
services the first respondent could have provided if this defence
had been on the table and based on what evidence.
The applicant also
sought to counter the view expressed by Mr Dayimani, based on his
professional involvement in and experience
of litigating in several
actions of this nature, that he did not believe such a conclusion to
be a valid or a reliable one.
[19]
As
can be seen below, considering the view I take in this matter the
main point which disposes of the matter is the second respondent’s
objection to the applicant’s lack of standing to bring the present
application.
[20]
2001
(1) BCLR 77 (CC).
[21]
At
par [2].
[22]
At
par [4].
[23]
Published
in Government Gazette No. 61771 dated 13 July 2018 and later amended
by R.33 published in Government Gazette No. 42577
dated 12 July
2019.
[24]
Section (2) (2)(a) – (g) of the Act provides that the President
may exercise his powers on the grounds of any alleged:
“
(a)
serious maladministration in connection with the affairs of any

State institution;
(
b
)

improper or unlawful conduct by employees of any State institution;
(
c
)

unlawful appropriation or expenditure of public money or property;
(
d
)
unlawful, irregular or unapproved acquisitive act, transaction,
measure or practice having a bearing upon State property;
(
e
)

intentional or negligent loss of public money or damage to
public
property;
(f)
offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so
far as it relates to the aforementioned offences) of Chapter
2 of
the
Prevention and Combating of Corrupt Activities Act, 2004
, and
which offences was [sic] committed in connection with the affairs of
any State institution; or [Para. (f) substituted by
s. 36
(1) of Act
12 of 2004.]
(g)
unlawful or
improper conduct by any person which has caused or may cause
serious
harm to the interests of the public or any category thereof.”
[25]
Special
investigating Unit v Mfeketo & 20 similar matters
2001 (1) SA
1089
at pages 1102 and 1003; Special Investigating Unit v Kim
Diamonds (Pty) Ltd
2004 (2) SA 173
at 182.
[26]
The
converse of this assumption is, as what stated by the court in
Ngubane that: “By making use of private medical services and
hospital facilities, a plaintiff, who has suffered personal
injuries, will in the normal course (as a result of enquiries and

exercising a right of selection) receive skilled medical attention
and, where the need arises, be admitted to a well-run and properly
equipped hospital. To accord him such benefits, all would agree, is
both reasonable and deserving. For this reason it is a legitimate
-
and as far as I am aware the customary - basis on which a claim for
future medical expenses is determined.”
[27]
PN
Supra
at par [26].
[28]
The
applicant sought in its head of argument to raise the sceptre of the
first respondent’s officials and/or legal representatives
having
“violated the provisions of section 195 (1) (a) (b) (d) (g) of the
Constitution” (sic) in their administration of the
trial action.
The applicant also purported, for the first time in its replying
affidavit, to add another string to its bow,
namely that the first
respondent
knew
about Putuma, but did not raise the public health care defence, as
if to suggest something more sinister capable of been construed
as
“maladministration”.
[29]
DZ
supra at par [45]; MSM supra at par 178;
The
South African Law Commission Issue Paper 33, Project 141
“Medico-legal Claims” (SALC issue paper) at par 2.20, page 16.
[30]
See
also SIU v MEC for Health, Province of the EC and NS obo XS, Mthatha
case No. 694/14 (judgment delivered 1 December 2020) in
which Tokota
J remarked in an application more or less similar to the present
one, in dealing with the question whether a court
can allow the SIU
to reopen cases in which they were not involved, that; “ if the
organs of State clothed with powers to investigate
corruption and
related maladministration in the government resulting in wasteful
and irregular expenditure were allowed to re-open
cases in which
they were not involved, that would bring about chaos and
uncertainty.” This case speaks to the ill-conceived objective
of
the applicant in seeking to involve itself, at great cost and
prejudice to a plaintiff who has obtained a judgment fair and
square
in re-opening a trial where the defendant raises no complaint of
impropriety concerning its finality, in order to reverse
it under
the guise of the powers it supposedly has in the proclamation. See
also paragraphs [14] and [15] and Tokota J’s conclusion
(at par
[21]) that he is not persuaded that the proclamation (the same one
in contention here) authorises the applicant to endeavour
to re-open
cases as well as his further view that “(i)f it does so…it is
ultra-vires
the
powers of the President.” Leave was granted to the applicant in
March of this year to appeal against the judgment.
[31]
The
applicant startingly asserts that the “failure” to raise the
defence “significantly prejudiced the first respondent by
exposing
it to a damages claim in (the) sum of R13 241 323.00 based
on the joint minutes of the expert witnesses”.
The first
respondent has not suffered “damages”.  She was fairly
ordered to compensate the second respondent for her damages
in this
sum
inter
alia
based on the negligence of her staff at the hospital.