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[2019] ZAFSHC 265
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Willemse v MEC for Health, Free State Province (3905/2018) [2019] ZAFSHC 265 (17 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
3905/2018
In
the matter between:-
JEAN
WILLEMSE
Applicant
and
THE
MEC FOR HEALTH, FREE STATE
PROVINCE
Respondent
CORAM:
N. M. MBHELE, J
HEARD
ON
:
29 NOVEMBER 2019
DELIVERED
ON
: 17 FEBRUARY 2020
[1]
This is an application for leave to appeal against the whole judgment
and the order of Morobane, AJ in which he dismissed the
applicant’s
application for condonation. The applicant instituted action
proceedings against the respondent for damages he
allegedly suffered
as a result of negligence on the part of the respondent. The
respondent resisted the applicant’s claim
and filed a special
plea raising non-compliance with the provisions of section 3 (2) (a)
of the Institution of Legal Proceedings
against Certain Organs of
State ACT 40 OF 2002 (the Act).
[2]
In his judgment, Morobane, AJ found that the applicant failed to
provide full and reasonable account for his non-compliance
with the
relevant provisions of the Act, that there are no prospects of
success and further that the respondent will suffer prejudice
if
condonation for non-compliance with the relevant provisions of the
Act were to be granted.
[3]
The application is based on numerous grounds set out in the notice of
application for leave to appeal, I am not going to repeat
them. Ms.
Mitchley, on behalf the applicant, and Mr. Mtokosha, on behalf of the
respondent, filed heads of argument for which I
am grateful.
[4]
In terms of
section 17(1)
of the
Superior Courts Act 10 of 2013
, I must grant leave to appeal if I am
of the opinion, amongst others, that the appeal would have reasonable
prospects of success.
[5]
The applicant was admitted to Metsimaholo Hospital, Sasolburg, on 25
October 2016 and got transferred to Boitumelo Hospital,
Kroonstad,
the following day where he was further transferred to Pelonomi
Hospital, Bloemfontein, on 26 October 2016. He alleges
that the
ambulance that transported him from Sasolburg to Kroonstad ran out of
petrol causing him to wait for more than 3 hours
before he could
continue with his journey. He, further, alleges that on his arrival
at Boitumelo Hospital he was left unattended
for most of the day
before he could be transferred to Bloemfontein for attention. His arm
was amputated and he was informed by
the attending doctor that the
amputation was as a result of excessive bleeding and unavailability
of proper equipment to treat
his condition at the relevant health
facilities.
[6]
The applicant filed his
section 3
notice about 17 months after the
cause of action arose. The reasons advanced by the applicant for
failure to file his notice is
that he was ignorant of the requirement
of the Act that provides that the relevant notice must be filed
within 6 months from the
date on which the debt became due. He only
became aware of this requirement when he consulted with his Attorney
on 26 February
2018. The Attorney struggled to obtain medical
records from the 3 hospitals that attended to the applicant resulting
in him
only filing the notice a month after the consultation. It is
not in dispute that the applicant is a lay person.
[7]
Section 3 (4) of the Act provides:
“
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 a
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.”
[8]
The judgment of the court a quo does not state the nature of
prejudice that the respondent will suffer if condonation were to
be
granted. The respondent dealt with the question on general terms and
did not confine it to the matter at hand
[9]
Having considered the merits of the application for leave to appeal,
I am persuaded that the application for condonation would
have a
reasonable prospect of success. As a consequence the
application for leave to appeal must succeed.
Order:
Application
for leave to appeal is granted to the full court of this Division;
Costs
shall be costs in the appeal
______________
N.M
MBHELE, J
For
the Applicant:
Adv. Mitchley
Honey
Attorneys
Bloemfontein
For
the Respondent:
Adv. Ntokosha
State
Attorney
Bloemfontein