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[2019] ZAFSHC 70
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G K obo M K v Member of the Executive Council for the Department of Health (2795/2015) [2019] ZAFSHC 70 (6 June 2019)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2795/2015
In
the matter between:
G
K obo M K
Applicant
and
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF
HEALTH
Respondent
HEARD
ON:
16
MAY 2019
JUDGMENT
BY:
MEINTJES,
AJ
DELIVERED
ON:
6
JUNE 2019
[1]
This is an application by the applicant for confirmation that her
notice of intention to institute legal proceedings to the
respondent,
in terms of section 3 of the Institution of Legal Proceedings against
Certain Organs of State Act, 40 of 2002(the Act),was
timeously filed,
or alternatively for condonation for the late service of her said
notice in that legal proceedings were instituted
against the
respondents(the second defendant is The Head of the Provincial Health
Department of the Free State Provence) for damages
(R5000.00)
allegedly suffered by the applicant in her personal capacity and (R10
995 000.00) in her representative capacity as
mother and natural
guardian of M.
These
damages by reason of the averred negligent conduct of the second
respondent.
[2]
The first respondent (the respondent) opposes the applicant’s
application, contending that the claim of applicant in her
personal
capacity has prescribed in terms of
section 11
of the
Prescription
Act, 68 of 1969
, and that as a result thereof, condonation ought not
be granted as the purpose for which it is sought, no longer exists,
and that
in the alternative, applicant has failed to satisfy the
requirements of the Act, which would enable condonation.
[3]
The following facts are common cause between the parties and are for
purposes of this application, important:
3.1 The relevant alleged
negligent conduct on which applicant’s claims are funded,
occurred on 20 May 2009-23 May 2009.
3.2 The combined summons
was issued on 12 June 2015 and served on 19 June 2015.
3.3 Applicant’s
claim in her personal capacity, in the normal course, would have been
extinguished by prescription on 19
May 2012.
3.4 Applicant’s
claim in her representative capacity as mother and natural guardian
of M, has not been extinguished as such,
seeing that M is still a
minor. Prescription does not run against a person who acts on
behalf of a minor.
3.5 It is to be accepted
that no timeous
section 3(1)(a)
of the Act notice was given by or on
behalf of applicant to the respondent.
A
copy of the notice attached (JN2) reveals it is dated 6 October 2014
but received 14 January 2015, well beyond the six (6) months
period
stipulated by the Act. The notice, with reference to paragraphs
1 and 3 thereof, and as respondent also contended,
stating that the
legal proceedings, when the notice was sent, were for applicant in
her representative capacity and not in her
personal capacity.
[4]
The issues to be decided in this matter centre on the
Prescription
Act, 68 of1969
, and the Act.
[5]
Section 11(d)
of the
Prescription Act states
that civil debts
prescribe three (3) years after the debt is due.
Section 12(1)
thereof, stating that the debt must be immediately payable.
There is no suggestion from any of the parties that the three-year
prescription period does not apply in the case of the debt of
applicant in her personal capacity.
[6]
Section12 (3) of the Prescription Act, provides:
“
(1) Subject to the
provisions of subsections (2),(3),and (4),prescription shall commence
to run as soon as the debt is due.
(2) If the debtor
wilfully prevents the creditor from coming to know of the existence
of the debt, prescription shall not commence
to run until the
creditor becomes aware of the existence of the debt.
(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 a creditor shall be deemed to have such knowledge if he
could have acquired it by exercising
reasonable care”
6.1) From the documents
filed and the arguments, there is no basis that applicant was
prevented from coming to know about the debt.
(Section 12 (2)).
6.2) It seems that
section 12(3) imposes a duty on the creditor (the applicant) to
exercise reasonable care to obtain knowledge
of the debtor (the
hospital and personnel) and the facts from which the debt arises.
Applicant is not allowed to just postpone
the commencement of the
running of prescription by her failure to take necessary steps.
Nel J, in Burley Appliances Ltd v
Grobbelaar NO & others 2004(1)
SA 602 (C) at 607 G said:”…the declaratory is contrary
to the established principle
that a creditor cannot by supine
inaction arbitrarily and at will postpone the commencement of
prescription.’
In
Drennan Maud & Partners v Pennington Town Board 1998(3) SA 200
(SCA) at p 209F-G, Olivier JA said:
‘
(s)ection 12(3) of
the Act provides that a creditor shall be deemed to have the required
knowledge “if he could have acquired
it by exercising
reasonable care”. In my view, the requirement “exercising
reasonable care” requires diligence
not only in the
ascertainment of the facts underlying the debt, but also in relation
to the evaluation and significance of those
facts. This means
that the creditor is deemed to have the requisite knowledge if a
person in his position would have deduced
the identity of the debtor
and the facts from which the debt arises’.
In Truter and Another v
Deysel 2006(4) SA 168 (SCA) at p 175 B Van Heerden JA said:”…Section
12(3) of the Act requires
knowledge only of the material facts from
which the debt arises for the prescriptive period to begin running-it
does not require
knowledge of the relevant legal conclusions (ie that
the known facts constitute negligence) …”
In Leketi v Tladi NO &
Others (2010)3 ALL SA 519 (SCA) para 18 Mthiyane LA said:’…In
order to determine whether
the appellant exercised “reasonable
care”, his conduct must be tested by reference to the steps
which a reasonable
person in his or her position would have taken to
acquire knowledge…”
The
impact of section 12(1) read with section 12(3) is that prescription
starts to run as soon as the creditor has or ought to have
knowledge
of the identity of the debtor and the facts from which the debt
arises.
The
incident in which the applicant was involved, took place during 20
May -23 May 2009.Her claim in her personal capacity, in terms
of
section 11
of the
Prescription Act, prescribed
on 19 May 2009.From
what she alleges in her confirmatory statement, she was aware of the
name of at least one of the hospitals,
involved. According to
the founding statement of J.M.Nkeli, applicant only consulted with
him on 21 April 2013.The records
were then obtained and he alleges:
“The records were in keeping with the version that the
applicant had explained from
a factual point of view in regard to
admissions to hospital and the final diagnosis.”(P6 para 9.11
of the Index to the application
for condonation). This nearly 4
years later, but the applicant sooner already well aware of the
facts. She stated in
the affidavit that she was informed by the
doctors at the Mofumhandi Monapo Hospital of M’s condition and
already after a
month that M was born, she realized the severity of
M’s disability. The Applicant also stated in her affidavit on p
2 para
4:”I did not know who to approach initially, and was
wary of approaching any attorney who might not know what to do”.
She thus was well aware that an attorney can be approached for
assistance.
Clearly,
by applying the objective standard, applicant failed to exercise
reasonable care as required by
section 12(3).Applicant
’s
failure to institute action timeously was caused by her inaction and
not an inability to obtain knowledge of the identity
of the debtor
and the facts timeously.
[7]
Section 3
of the Act, provides:
‘
3(1) No legal
proceedings for the recovery of a debt may be instituted against an
organ of state unless-
(a) A creditor has given
the organ of state in question notice in writing of his or her or its
intention to institute the legal
proceedings in question; or
(2) A notice must-
(a) within six months
from the date on which the debt became due, be served on the organ of
state in accordance with
section 4(1)
;
(3) For purposes of
subsection 2(a)-
(a) A debt may not be
regarded as due until the creditor has knowledge of the identity of
the organ of state and of the facts giving
rise to the debt, but a
creditor must be regarded as having acquired such knowledge as soon
as he or she or it could have acquired
it by exercising reasonable
care, unless the organ of state wilfully prevented him or her or it
from acquiring such knowledge;
and
(b) A debt referred to in
section2(2)(a),must be regarded as having become due on the fixed
date.
(4) (a) If an organ of
state relies on a creditor’s failure to serve a notice in terms
of section (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’
[8]
Applicant’s claim in her personal capacity has prescribed.
This debt extinguished by prescription. Condonation
therefor
cannot be granted. It serves no purpose to grant such for the
late, or in this case no (seeing the contents of JN2),
giving of a
notice in respect of a debt which no longer exists and that cannot be
enforced. The purpose of the Act is not
to revive debts that
have already prescribed. (See Premier, Western Cape v Lakay
2012(2) SA 1 on p 11 C).
[9]
With regard to applicant’s claim in her representative capacity
on behalf of M, section 13(1) of the Prescription Act
provides:
‘
(1) If-
(a)
the
creditor is a minor…
…
(h)…and
(i) the relevant period
of prescription would, but for the provisions of this subsection, be
completed before or on, or within one
year after, the day on which
the relevant impediment referred to in paragraph (a)…has
ceased to exist,
the period of
prescription shall not be completed before a year has elapsed
after the day referred to in paragraph (i).’
Other
relevant provisions of the Act to refer hereto are section2(2) which
is referred to in section 3(3)(b)
‘
2(2)Subject to
section 3 and subsections (3) and(4),a debt which became due-
(a)before the fixed
date, which has not been extinguished by prescription and in respect
of which legal proceedings were not instituted
before that date;
or
(b)after the fixed date,
will be extinguished by
prescription as contemplated in Chapter III of the Prescription
Act(1969),Act 68 of 1969),read with the
provisions of that Act
relating thereto.
(3) Subject to subsection
(4),any period of prescription which was applicable to any debt
referred to in subsection (2)(a),before
the fixed date, will no
longer be applicable to such debt after the fixed date.
(4)(a)The expired portion
of any period of prescription applicable to a debt referred to in
subsection (2)(a),must be deducted from
the said period of
prescription contemplated in Chapter III of the Prescription
Act,1969,read with the provisions of that Act relating
thereto, and
the balance of the period of prescription so arrived at will
constitute the new unexpired portion of prescription
for such debt,
applicable as from the fixed date.
(b) If the unexpired
portion of the period of prescription of a debt referred to in
paragraph (a) will be completed within 12 months
after the fixed
date, that period of prescription must only be regarded as having
been completed 12 months after the fixed date.’
9.1 M is still a minor
and this debt has accordingly not prescribed under the
Prescription
Act.
9.2 Applicant
, in her
capacity as mother and guardian of M, falls within the definition of
‘creditor’ in the Act.(See Premier, Western
Cape v Lakau,
supra
on p10 A)Section 3 (3)(a) does not apply in this case,
because of the provisions of
section 3(3)(b)
read with
section2(2)(a).
Applicant
therefor had to give the notice required by the Act. Which she
did, but as seen, way beyond the time as prescribed.
This
notice according to the Act, to be given at an early stage, to enable
an organ of state to investigate the allegations upon
which a claim
is based on.
[10]
In considering whether the said notice must be confirmed (the Act
does not refer to confirmation) or whether condonation may
be granted
or not for applicant’s failure, regard should be given to
section 3(4)
of the Act which provides as seen, that a court may
grant such application if it is satisfied on three matters:
(i)
That the debt has not been extinguished yet by prescription. I
have already found that this debt has not been extinguished
by
prescription.
(ii)
That good cause exists for the failure by the creditor.
Applicant must furnish an explanation for the default sufficiently
full to enable the court to understand how it came about, and to
assess applicant’s conduct and motives. (See Silber
v
Ozen Wholesalers (Pty) Ltd 1954(2) SA 345 A at 352 H-353 A).
Each
case must depend on its own facts.
In
Madinda v Minister of Safety and Security 2008(4) SA 312 (SCA) at
p316 para E-F, Heher JA states:
“’
Good
cause’ looks at all those factors which bear on the fairness of
granting the relief as between the parties and as affecting
the
proper administration of justice. In any given factual complex
it may be that only some of many such possible factors
become
relevant. These may include prospects of success in the
proposed action, the reasons for the delay, the sufficiency
of the
explanation offered, the bona fides of the applicant, and any
contribution by other persons or parties to the delay and
the
applicant’s responsibility therefor.”
On
p 317 para C the learned Judge states:
“
There
are two main elements at play in
s 4(b)
, viz the subject’s
right to have the merits of his case tried by a court of law and the
right of an organ of state not to
be unduly prejudiced by delay
beyond the statutorily prescribed limit for the giving of the
notice.”
[11]
Given the explanation proffered by the applicant in her affidavit,
with reference to her background, in all probability not
highly
schooled, employed as a domestic worker and therefor her explanation
that she was unaware of the requirement of the statutory
notice,
the fact that she was, on her first consultation with the attorney,
Mr. Nkeli, told that further investigation would
be done by them and
the subsequent search for the applicable records and information,
applicant’s explanation for her failure,
is acceptable and
applicant had therefor shown good cause exists for her failure to
give the notice timeously.
Medical
and hospital records and evidence were apparently traced, which in
all probability, give the applicant at the least, fair
prospects of
success in the action.
(iii)
The organ of state was not unreasonably prejudiced by the failure.
The deponent to the affidavit filed on behalf of
the respondent,
pointed to the fact that nine (9) years have passed since the cause
of action has arisen, and that due to this,
respondent is prejudiced
as certain information pertaining to the case which would have
otherwise been available, had applicant
instituted her action on
time, the case cannot be investigated with precision and that vital
pieces of evidence may have been lost.
Only ‘may’.
Counsel for respondent did not point to any definite prejudice or
prejudice already been suffered.
In
fact, the deponent to the affidavit on behalf of applicant, states
that respondent was and still is in possession of the records
relating to M’s treatment and will be able to consult with the
medical and nursing staff applicable. There for, no
prejudice.
[12]
All three requirements set out in
section 3(4)(b)
of the Act have
been satisfied and the applicant is entitled to condonation for the
late service on respondent of the notice required
by the Act, only in
relation to the claim in her representative capacity, as mother and
natural guardian of M.
ORDER:
1. Applicant’s
application for condonation for the late service of the notice of her
intention to institute legal proceedings
in terms of
section 3
of the
Institution of Legal Proceedings Against Certain Organs of State
Act,40/2002,hereby granted, only in relation to the claim
in her
representative capacity as mother and natural guardian of M.
2. Applicant’s
application for such condonation in relation to the claim in her
personal capacity is not granted and must
fail.
3. Costs of this
application to be costs in the cause.
______________
MEINTJES,
AJ
On
behalf of applicant/plaintiff:
Adv. D. de Kok
Instructed
by:
Webbers
Attorneys
Bloemfontein
On
behalf of respondent:
Adv. K.N. Nhlapo
Instructed
by:
State Attorneys (JMA
Engelbrecht)
Bloemfontein