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[2019] ZAFSHC 255
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T M v Member of the Executive Council Department of Health Free State Province (5789/2018) [2019] ZAFSHC 255 (28 November 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5789/2018
In
the matter between:
T
M
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH FREE STATE
PROVINCE
Respondent
CORAM:
MURRAY, AJ
HEARD
ON:
21 NOVEMBER 2019
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
28
NOVEMBER 2019
[1]
This is an application in terms of section 3(4) of the Institution of
Legal Proceedings against Certain Organs of State Act,
Act 40 of 2002
(“the Act”). The Applicant seeks condonation for
his non-compliance with section 3(2)(a) of the
Act by failing to
serve a notice of intention to institute legal proceedings against
the Respondent within the specified six months
(“the Notice”).
[2]
The Applicant is an unemployed adult male residing in Rocklands,
Bloemfontein. He instituted action against the MEC for
damages
which he claims to have suffered as a result of negligent
eye-treatment in National Hospital in January 2016.
He avers
that it followed upon an alleged work-related incident in which he
was hit above the eye by a piece of concrete while
working with a
grinder.
[3]
The Respondent denied his allegations and,
inter alia,
filed a
Special Plea setting out the Applicant’s failure to comply with
the provisions of the Act. On the Applicant’s
own version
his debt became due on 31 January 2016 and the six months which s
3(4) allows for the filing of his Notice expired
on 31 July 2016.
But the Notice was only served on the Respondent on 20 June 2017.
[4]
Although the Respondent notified the Applicant’s attorney on 27
June 2018 of the need to apply for condonation, and filed
its Special
Plea regarding the Applicant’s non-compliance on 6 March 2019,
this condonation application was only filed on
19 September 2019.
[5]
The Respondent submitted that the Applicant failed to make out a
proper case for the granting of condonation in that:
5.1 He failed to provide
adequate reasons for his failure to send the notice timeously
5.2 He failed to prove
good cause for the granting of condonation
5.3 He failed to launch
the application for condonation as soon as he realised that he needed
condonation; alternatively, within
a reasonable time, and
5.4 He failed to prove
that the Respondent did not suffer unreasonable prejudice due to the
delay.
[6]
The legal requirements for issuing summons against an organ of state
to recover a debt, as
in casu,
are fully set out in section 3
of the Act which specifies that:
“
(1) No legal
proceedings for the recovery of a debt may be
instituted
against an organ of state unless-
(a) the 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
(b) the organ of state
in question has consented in writing to the institution of that legal
proceeding(s)-
(i) without such
notice; or
(ii) upon receipt of a
notice which does not comply
with all the requirements set out
in subsection (2).
(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); and
(b) briefly set out-
(i) the facts giving
rise to the debt; and
(ii) such particulars
of such debt as are within the knowledge of the creditor.”
[7]
The Applicant’s Notice was therefore filed almost a year late
and the Respondent did not grant leave to institute summons.
In
terms of section 3(4)(a) of the Act, the Applicant after having
failed to comply with subsections 3(1) and (2), was entitled
to apply
to a court with jurisdiction for condonation of such failure since
the relevant organ of state, the Respondent, relies
on such failure.
Section 3(4)(b) determines that a court may grant an application for
condonation 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]
These three requirements are conjunctive and all three of them must
be established by the party requesting condonation, as is
evident
from
Minister
of Agriculture and Land Affairs v C J Rance.
[1]
Section
3(3)(c) makes it clear that the prohibition in section 3(1) on the
institution of such legal proceedings without compliance
with section
3(1)(b)(i) and section 3(2) is meant to be enforced unless
condonation is asked and obtained in terms of section 3(4)(a).
Subsection 3(c) determines that if condonation is granted in terms of
subsection (4)(b):
“
the court may
grant leave to institute the legal proceedings in question, on such
conditions regarding notice to the organ of state
as the court may
deem appropriate.”
[9]
The court therefore has a discretion to grant not only condonation,
but also leave to institute legal proceedings if such condonation
has
been granted.
[10]
In
Madinda
v Minister of Safety and Security
[2]
the Supreme Court of Appeal made it clear that a court’s power
to grant condonation is not unfettered. The use of the word
“
and
’
instead of “
or
”
in section 3(4)(b) is a clear indication that the legislature
intended to require compliance with all three of the requirements
before a court may grant such condonation. Only once the court is
satisfied that all three the requirements set out in s 3(4)(b)
have
been met, does the discretion to condone come into play. This
interpretation is in accordance with what the Appellate Division
held
in
Madinda
and in
Rance
,
supra.
[11]
The Supreme Court of Appeal has acknowledged that in section 3(4)(b)
the phrase ‘if [the court] is satisfied’ sets
“
a standard which
is not proof on a balance of probabilities but rather an overall
impression made on the court which brings a fair
mind to the facts
set up by the parties”.
[3]
[12]
In
Melane
v Santam Insurace Co Ltd
[4]
the
court held that what was needed was “an objective conspectus of
all the facts” and in
Madinda
[5]
the
Court cautioned that what should be considered were “all those
factors which bear on the fairness of granting relief as
between the
parties and as affecting the proper administration of justice.”
[13]
Condonation clearly, therefore, is not to be had for the mere
asking. In
Grootboom
v National Prosecuting Authority and Another
[6]
the
Constitutional Court determined that:
“
A party seeking
condonation must make out a case entitling it to the court’s
indulgence. It must show sufficient cause.
This requires
a party to give a full explanation for the non-compliance with the
rule or court’s directions. Of great
importance, the
explanation must be reasonable enough to excuse the default.”
[14]
Loubser J in
Van
der Merwe v The Minister of Police and the National Direcctor of
Public Prosecutions
[7]
,
referred to the principles that normally relate to condonation,
namely the degree of non-compliance, the explanation thereof,
the
importance of the case and the avoidance of unnecessary delay in the
administration of justice.
[15]
Although it is obvious that the attorney(s) played a prominent role
in the delay, apart from the few vague references to lack
of money
and lack of time, and attorneys who were unwilling to take on the
Government, the extent to which the applicant himself
contributed to
the delay is not explained. He does not explain how or when or
through whom he allegedly became aware of his potential
rights,
whether he immediately took steps to consult an attorney, why 14
months passed before he did so, and who directed him to
Mr
Bahlekazi. He does not describe any efforts by himself to
expedite his claim after his consultation with Mr Bahlekazi.
Certainly his explanation is not ‘full’ enough to enable
the Court to evaluate his contribution to the delay and his
bona
fides.
[16]
It is not in dispute that the Applicant passed the first of the three
hurdles towards condonation, namely non-prescription
of his claim,
since his summons was served on 19 November 2018
,
two months
before his claim would have prescribed. What remains to be
determined, therefore, is whether the Applicant also
met the two
remaining statutory requirements, namely ‘
good cause’
for the delay and proof that there was ‘
no unreasonable
prejudice to the respondent’
.
[17]
It is evident from
Silber
v Ozen Wholesalers (Pty) Ltd
[8]
that
the onus is on the Applicant to prove good cause, not merely to
allege it. To determine whether ‘
good
cause’
exists,
the court needs to investigate those factors which pertain to the
fairness of granting the relief and the proper administration
of
justice. There is no exhaustive list of such factors, but some
relevant ones that have been pointed out are: the reasons for
the
delay, the sufficiency of the explanation offered, the
bona
fides
of the applicant, any contribution by other persons or parties to the
delay, the applicant’s responsibility for the delay,
and the
prospects of success in the proposed action.
[9]
[18]
To enable the court to consider all of the above, the explanation for
the delay must therefore be ‘full’ enough’.
Schreiner JA described as the very basic requirement for condonation
in
Silber
v Ozen
[10]
that:
“…
the
defendant must at least furnish an explanation of his default
sufficiently full to enable the Court to understand how it really
came about, and to assess his conduct and motives.”
[19]
According to Heher JA
[11]
,
‘good cause for the delay’ is not simply a mechanical
matter of cause and effect. The court needs to decide whether
the
applicant has proffered
“
acceptable reasons
for nullifying, in whole or at least substantially, any culpability
on his part pertaining to the delay in serving
the notice
timeously”.
[12]
[20]
He further refined the requirement of a full explanation for the
delay in
Uitenhage
Transitional Local Council v SA Revenue Service
[13]
where
he made it clear that:
“
A full, detailed
and accurate account of the causes of the delay and their affects
must be furnished so as to enable the Court to
understand clearly the
reasons and to assess the responsibility. It must be obvious
that, if the non-compliance is time-related,
then the date, duration
and extent of any obstacle on which reliance is places, must be
spelled out.”
[21]
The Constitutional Court confirmed the requirement for a full
explanation in
Van
Wyk v Unitas Hospital
[14]
,
stating that:
“
In addition, the
explanation must cover the entire period of the delay.”
[22]
In my view the Applicant in the present case patently failed to meet
the criteria established for condonation in terms of section
3(4).
First of all, he failed to provide a “full”
explanation which enables the Court to assess how the delay
really
came about. In his explanation only two ‘non-specific dates’
were mentioned to account for a delay of 17 months,
namely ‘January
2016’ when he was admitted to National Hospital, and ‘March
2017’, when he, upon the directions
of an unknown person,
consulted an attorney, Mr Bahlakazi, who was willing to take on his
case on a contingency basis.
[23]
His only explanation for the 14 months that elapsed before he saw the
said attorney in March 2017, is a general averment, without
substantiation with any dates, names, details or specifics, that he
unsuccessfully approached some unnamed private attorneys and
an
unnamed Legal Aid attorney who all allegedly told him that they did
not deal with or litigate against Government; that he did
not have
money for a private attorney; and that he could not afford to take
time off from work to see an attorney. That is a very
far cry from a
full explanation.
[24]
No explanation whatsoever was given, either by the Applicant or by
his attorney, for the passing of a further 3 months after
the said
attorney accepted the mandate until the Notice was served on the
Respondent. No full explanation was given either as to
why his
summons was only filed on 19 November 2018, two months before his
claim would have prescribed.
[25]
The Applicant also failed to meet the requirement stated in
Rance
[15]
that the application for condonation should be lodged without delay
as soon as it is realised that there was no compliance with
the
specified time period. His attorneys were notified in writing
on 27 June 2018 of the need to apply for condonation. Furthermore,
on
6 March 2019 the Defendant’s Special Plea regarding
non-compliance with section 3 of Act 40 of 2002 was filed. On both
those dates it was clear, therefore, that an application for
condonation was needed.
[26]
Instead of immediately applying for condonation,
[16]
however, such application was only filed on 19 September 2019, which
is 15 months after the first reminder. Once again no
explanation substantiated with dates and specifics was offered
for the inordinate delay other than the bold remark that the
firm of
his erstwhile attorney dissolved when he joined the Bar, while his
present attorney took over the firm. No confirmatory
affidavit from
either of the two attorneys was annexed.
[27]
The most significant flaw in the application in my view is the
failure to establish a reasonable prospect of success. Prospects
of
success on the merits might have an important bearing on the
determination of the existence or not of ‘good cause’.
Exercising a discretion to condone where there is no prospect of
success would be an exercise in futility. Whether the merits are
shown to be strong or weak, may affect the applicants’
explanation for conduct which led to the delay.
[28]
The Applicant’s description of the alleged events that
triggered the summons is vague and unsatisfactory. There is only
a
general reference to ‘January 2016’ when he went to the
hospital with the alleged eye injury. He mentioned two doctors
by
name, but from the hospital records annexed to the Opposing
Affidavit, he appears to have erroneously ascribed to them the
alleged maltreatment that he relies on, namely an alleged unnecessary
operation which damaged his retina and eventually left him
partially
blind. He does not even identify the eye that was allegedly
damaged.
[29]
According to him at National Hospital fluid was withdrawn from his
eye for testing. He avers that a certain Dr van Wyk
operated on
his eye and a certain Dr Botha told Dr van Wyk that he should have
waited for the results before operating. An
unidentified
professor then told him that the operation had been unnecessary since
the eye had shifted and merely needed to be
returned to its correct
position, but that it had ‘died’ and was not going to
work again. According to him, since then
he has only limited sight in
one eye and is blind in the other one.
[30]
The facts set out in his Founding Affidavit in support of the
application for condonation, in my view distinctly failed to
pass the
second hurdle, namely to provide ‘good cause’ for the
delay sufficiently full to enable the court to determine
what really
happened.
[31]
It is trite that an applicant must make out his case in the Founding
Affidavit. From the Respondent’s Opposing papers,
however, it
appears that the Applicant has no or an extremely slight prospect of
success on the merits. On the Respondent’s
version,
substantiated with clinical notes and hospital records, the Applicant
never presented to National Hospital in January
2016 with trauma or
injury to his eye.
[32]
Upon his arrival at the hospital on 27 January 2016 his only
complaint was loss of vision. The admissions record indicates
that he
was HIV positive but not using his HIV medication. He was already
medically legally blind in his right eye (Vision “6/60”)
while his left eye showed signs of severe inflammation, caused by a
virus
(“fulminant CMV OS”
) which commonly occurs
in patients with diminished immunity.
[33]
It appears that Dr van Wyk never operated on him as averred. He
only administered one of a series of injections on 11
February 2016.
The fluid sample from the Applicant’s eye was taken on 18
February 2016 since at the time his eye still showed
symptoms of
infection. When Dr Marais operated on him on 26 February 2016 he
found that the retina of the infected eye showed “total
necrosis” with a very poor prospect of recovery. According to
the records, on 24 August 2016 his left eye showed complete
retinal
necrosis due to the infection he was suffering from. He did not
attend his follow-up appointment one year later, and only
returned 26
months later.
[34]
From the Respondent’s averments in the Opposing Affidavit, and
the clinical records annexed thereto, the
prima facie
impression,
furthermore, is that the Applicant was not truthful with the
averments in his Application for Condonation or in his
Particulars of
Claim.
Prima facie
there therefore appears to be no reasonable
prospect of success regarding the Applicant’s claim.
[35]
In the absence of a full, sufficient and acceptable explanation for
the apparent 14 months delay in contacting an attorney,
except for
the vague references to the unnamed attorneys who said they do no
litigate against the government, and the lack of any
reasonable
explanation for the further delay of more than two years until this
application for condonation was filed, the court
can certainly not
find that the applicant, or his attorneys, made a serious effort to
pursue his potential claim.
[36]
The third requirement for condonation is for the Applicant to prove
that the Respondent did not suffer unreasonable prejudice
due to the
delay. In
Rance
[17]
it was made clear that the “Absence of unreasonable
prejudice falls to be decided separately as a specific requirement
to
be met by an applicant.” And as stated in
Madinda
[18]
there are two main elements at play in subsection 4(b), namely the
applicant’s right to have the merits of the case tried
by a
court of law, but also the right of an organ of state not to be
unduly prejudiced by delay beyond the statutory prescribed
limit for
giving notice. Subsection (iii) requires the court to be
satisfied that there is no such prejudice.
[37]
In
Brümmer
v Minister for Social Development
[19]
the
Constitutional Court pointed out that “Delays in litigation
hamper the interests of justice. Documents may be lost.
Witnesses may disappear. Memories of witnesses may fade.”
Although the Defendant appears to have at least some of the relevant
clinical records which show that the Applicant’s version of the
events of January and February 2016 are not true, almost
four years
have passed since his hospital visit. And as the Respondent pointed
out, memories fail and the medical staff deal with
hundreds of
patients every year. Yet they would still need to testify at any
trial to disprove the Applicant’s averments
and would still
need to rely on their memories for the details of his complaints and
his treatment, apart from what is written
in the notes, to refute the
Applicant’s averments which are contrary to what the clinical
notes and hospital records indicate.
[38]
Therefore, although the Respondent did not specifically plead
prejudice, except to point out the common sense factors above,
the
Applicant cannot rely on that to aver that it did not suffer
prejudice. Nor can it rely on
Mothupi
v MEC
[20]
in which the Respondent was criticised for relying only on a
technical point, namely failure to file a section 3(2)(a) Notice
timeously.
[39]
The Applicant’s averments were denied in the Plea and
substantively and materially contradicted in the Opposing Affidavit.
From the averments in and annexures to the Plea and the Opposing
Affidavit it appears,
prima facie
, that the Applicant relies
on incorrect facts and circumstances to found his claim. It
appears that he never presented with
trauma to his eye but throughout
presented with inflammation and infection, and that he was already
legally blind in his right
eye and showed signs of inflammation in
his left eye.
[40]
It appears, furthermore, that the eventual outcome of the treatment
was not due to medical negligence, but to his own HIV status
with
concomitant problems.
Prima facie
therefore, it appears that
the Applicant does not have a good prospect of success on the merits
which could compensate for the
lack of a good explanation for the
delay.
[41]
Had the letter of demand in terms of Act 40 of 2002 been sent
timeously, the Defendant would at least have had an opportunity
to
investigate the claim while the memory of the Applicant’s
condition, symptoms and treatment was still fresh in the minds
of the
doctors and nurses who treated him. In my view the requirement
of having to notify state organs within six months
of any proposed
claim for damages was introduced specifically to prevent this type of
situation where an organ of state is called
upon to meet a claim
regarding which it might be unable to objectively verify all of the
circumstances leading to the claim.
[42]
Undeniably, therefore, the Defendant suffered prejudice because of
the inordinate delay in the filing of the section 3(2)(a)
notice and
the summons in which the alleged complaints are set out. Accordingly,
in my view, the Applicant failed to meet the third
leg of section
3(4)(b) as well, namely to satisfy the Court that the Respondent had
not been unreasonably prejudiced by the failure
to serve the Notice
timeously. The requirement of the existence of “
unreasonable
prejudice
” rather than simply any level of prejudice,
requires a common sense analysis of the facts, bearing in mind that
whether the
grounds of prejudice exist often lies peculiarly within
the knowledge of the respondent.
[43]
Once the court has investigated all the facts, it is in a position to
assess the combined weight to be attributed to the three
elements of
section 3(4)(b)(i), (ii) and (iii) in the context of the discretion
to grant or refuse condonation. In view of the
patent lack of a
sufficiently full explanation for the 14 months delay in notifying
the Respondent of the Applicant’s proposed
claim and the
failure to establish a reasonable prospect of success on the merits,
the Applicant in my view patently failed to
establish ‘good
cause’ for condonation. He also failed to prove that the
Respondent suffered no reasonable prejudice
as a result of the late
filing of the Notice.
[44]
The Supreme Court of Appeal has determined that the structure of
section 3(4) is now such that the court must be satisfied
that
all
three
requirements have been met before it can exercise its discretion to
condone non-compliance with the Act.
[21]
Therefore, in view thereof that the Applicants did not meet the
second and third of the three statutory requirements for
condonation
in terms of section 3(4)(b), the Court is not in a position to
exercise its discretion to grant condonation for the
Applicants’
non-compliance with the requirements of Act 40 of 2002.
[45]
I agree with Ms Wright’s submission that Applicant was obliged
to bring the application for condonation and that the
Respondent was
entitled to oppose it, and that the Applicant seeks an indulgence and
should pay the costs of the application. In
Meyers
v Abrahamson
[22]
the court stated that it is neither reasonable nor fair for the
opponent in an application for an indulgence to be put in a position
that he opposes the granting of such indulgence at his peril as the
Applicant in this application attempted to do by requesting
a costs
order against the Respondent only if it opposed the application.
[46]
The court in
Meyers
then added that:
“
It seems to me
that the applicant for the indulgence should pay all such costs as
can reasonably be said to be wasted because of
the application; these
costs to include the costs of such opposition as is in the
circumstances reasonable, and not vexatious or
frivolous.”
[47]
The opposition of the application was neither frivolous nor
vexatious. I therefore find no reason to deviate from the
general practice regarding costs. The prayer for costs to be
awarded on an attorney and client scale was correctly abandoned
since
not all of the fault for the delay can be attributed to the Applicant
himself and a punitive costs order is therefore not
warranted.
WHEREFORE
the following order is made:
1. The application for
condonation in terms of section 3(4) of the Institution of Legal
Proceedings against Certain Organs of State
Act 40 of 2002 is
dismissed with costs.
______________
H.
MURRAY, AJ
On
behalf of the applicant:
Adv N M Bahlakazi
Instructed
by:
Mr
H J Booysen
Attorney for the
Applicant
Booysen & Fourie
Attorneys Inc
87 Kellner Strreet
Westdene
BLOEMFONTEIN
On
behalf of the defendant:
Adv GJM Wright
Instructed by:
Mr M M Tlale
Office of the State
Attorney
11
th
Floor
Fedsure Building
49 Charlottte Maxeke
Street
BLOEMFONTEIN
[1]
2010
(4) SA 109
(SCA) at 113A
[2]
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at para
[6]
at 315 and 316 E - F
[3]
Madinda
v Minister of Safety and Security
,
supra
,
at para [8] at 316.
[4]
1962(4)
SA 531 (AD) at 532 E
[5]
Supra,
at
316 E - F
[6]
2014
(2) SA 68
(CC) at 76D
[7]
Unreported
judgment of the Free State Division, case number 2530/2018
(Delivered 11 July 2019) at
par
[5]
[8]
1954
(2) SA 345
(AD) at 352G, 353H
[9]
Madinda
v Minister of Safety and Security
,
supra
,
at para [10] at 316.
[10]
1954 (2) SA 345
(A) at 352H – 353A.
[11]
Madinda
v Minister of Safety and Security
,
supra
,
at para [11] at 316.
[12]
See
also:
M
D Marais v Minister of Safety and Security and the MEC for Roads and
Transport
,
Unreported
Free State Division case no 1521/2010 in which Jordaan J held that
an explanation
should
be full and at least sufficient and acceptable.
[13]
2004
(1) SA 292
(SCA) at 297 H - J
[14]
2008
(2) SA 240
(CC) at par [20]
[15]
2010
(4) SA 109
(SCA) at 118 A - B
[16]
See:
Rance
,
supra,
at
118 A – B where the Supreme Court of Appeal determined that
“Condonation
must
be applied for as soon as the party concerned realizes that it is
required.”
[17]
Supra,
at
117H
[18]
Madinda
v Minister of Safety and Security
,
supra
,
at para [12] at 317.
[19]
2009 (6) SA 323
(CC) at 346 E
[20]
Mothupi
v MEC’ Department of Health Free State (20598.2014)
[2016]
ZASCA 27
(22 March 2016)
[21]
Madinda
v Minister of Safety and Security
,
supra
,
at para [16] at 317.
[22]
1951 (3) SA 438
(CPD) at 455 F - H