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[2019] ZAECMHC 44
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NM obo NM v MEC for Health, Eastern Cape (1748/2017) [2019] ZAECMHC 44 (27 August 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE LOCAL
DIVISION: MTHATHA]
CASE
NO. 1748/2017
In the matter between:
N[…]
M[…] obo N[…] M[…]
Plaintiff
And
MEC FOR HEALTH,
EASTERN CAPE
Defendant
JUDGMENT
JOLWANA J
[1] The plaintiff alleged
in her particulars of claim that her minor child N[…] was born
with hypoxic ischaemic encephalopathy,
microcephaly, impaired fine
motor function and superadded hypoglycemia giving rise to spastic
quadriplegic cerebral palsy and developmental
delay. The
plaintiff further alleged that these birth defects were as a result
of the defendant’s breach of contract,
alternatively negligence
for various reasons which are not relevant for present purposes.
[2] The defendant
defended the action and what is relevant for present purposes is the
defendant’s special plea which reads:
“
1.
In terms of Section 3 of the Institution of Legal Proceedings Against
Certain Organs of State Act, 2002 (Act No.40 of 2002) no
legal
proceedings for the recovery of a debt may be instituted against an
organ of state unless the creditor has given the organ
of state
notice in writing of his or her intention to institute legal
proceedings and that notice sent to the relevant designated
official;
2. Such notice must be
served on the appropriate and relevant organ of state within six (6)
months from the date on which the debt
became due and must set out a
cause of action of the creditor;
3. Further, in terms of
Section 4 of the Act such notice must be served on an organ of state
by delivering it by hand or by sending
it by certified mail to the
relevant head of government.
4. In this case it is
alleged that:
4.1 the plaintiff is a
creditor;
4.2 the defendant is an
organ of state;
4.3 the debt became due
during the period August 2009.
5. The plaintiff did not
comply with the provisions of Sections 3 and 4 of the Act in that:
5.1 She did not give
notice of her intention to institute this action within 6 months from
the date on which the debt became due,
as required by section 3
(2)(a) of the Act; and
5.2 She did not serve a
proper notice on the relevant state Department or official, as
required by the Act.
5.3 Alternatively, the
said notice (if issued – although denied) does not set out the
nature of the cause of action and or
facts upon which the claim is
based.”
[3] Predictably in
matters of this nature the plaintiff launched an application for the
condonation of the non-compliance with the
Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002 (the
Act).
[4] The order granted by
this court in respect of the condonation application reads as
follows:
“
1.
The applicant first became aware of the damages claim against the
respondent on 28 February 2017.
2. The applicant’s
non-compliance with the provisions of Section 3(1) and Section 3(4)
of the Institution of Legal Proceedings
against Certain Organs of
State Act 40 of 2002 is hereby condoned.”
[5] The above order was
granted on an unopposed basis as the defendant did not file a notice
to oppose and/or an answering affidavit
nor was there an appearance
on behalf of the defendant when the above order was granted.
[6] Thereafter, both
parties prepared for trial and filed a new Rule 37 minute in which
parties agreed that the matter was ready
for trial with the defendant
indicating therein that it was ready to proceed with the trial on the
merits only. Furthermore
the parties also declared that they
have no intentions of amending the pleadings or requesting trial
particulars. It is not
clear when this minute was done but the
notice of filing thereof was served on the defendant on 16 July 2019.
[7]
Furthermore the parties met on 17 July 2019 and agreed on a pre-trial
checklist in which the defendant indicated that it was
ready to
proceed with the trial on liability only. The defendant
indicated that that it would call 1 lay witness and 6 expert
witnesses. Most significantly the parties agreed that there
were no points
in
limine
and/or interlocutory issues which have arisen or which are
anticipated to arise. On the basis of an agreement between the
parties and the Judge being advised that the matter was trial ready
and being satisfied that indeed it was, the matter was certified
trial ready during the roll call convened in terms of the new
Practice Directive
[1]
issued by
the Judge President dated 25 June 2019. The matter was set down
for trial to commence on 26 August 2019.
[8]
However, on 16 August 2019 which was exactly 10 days before the trial
date the defendant served and filed an amended plea which
also
included the same special plea in exactly the same terms as it was
filed on 18 September 2017. Furthermore the defendant
insisted
that the matter was not ready to proceed because the plaintiff has
not dealt with the defendant’s special plea in
so far as it
relates to the proper service of the section 3(1) notice upon the
head of department in terms of section 4(1) of the
Act
[2]
.
This prompted the Judge President to issue a directive for the
parties to agree on a stated case for adjudication on whether
the
special plea was still a live issue or not.
[9] The said stated case
recorded the following:
“
1.
The parties were directed on the roll call on 26 August 2019 by the
Honourable Judge President to prepare a stated case to deal
with the
amended defendant’s special plea, dated 16 August 2019.
2. In particular to deal
with the point that has been raised by the defendant in her special
plea that the plaintiff did not serve
her notice to institute the
action to the relevant state department or official as required in
terms of the Institution of legal
proceedings against certain organs
of State Act 40.2002. (hereinafter referred as the act)
BACKGROUND
3. The Defendant pleaded
the exact same special plea originally dated 18 September 2017.
4. The Plaintiff brought
an application in terms of Section 3(4)(a) of the Act, for her
failure to comply with Section 3(1) read
with Section 2(a) and
Section 4(1) of the act.
5. The Defendant filed no
opposing affidavit.
6. The application served
before the Honourable Jolwana J on 2 October 2018 and there was no
appearance on behalf of the Defendant.
7. The court granted the
application as it appear in the above court order.
8. It is the Plaintiff’s
contention that the effect of the condonation that was granted is
that the Plaintiff’s failure
to serve a notice within six
months on the Head of the Department or the Superintendent General
was condoned.
9. It is the Defendant’s
contention that the condonation did not include the failure to serve
on the head of the Department.
ISSUES TO BE DECIDED
BY THE COURT
10. The issue to be
decided is whether the Defendant’s Special Plea dated 16 August
2019, in particular paragraph 5.2 remains
an issue between the
parties.”
[10] As indicated above
the defendant’s special plea dated 16 August 2019 is in exactly
the same terms as it was issued on
18 September 2017. It seems
to me that the real issue is whether the order granted by this court
on 02 October 2018 in which
section 4(1) is not specifically
mentioned included a condonation for its non-compliance.
[11] The plaintiff
specifically addressed the issue of non-compliance with section 4(1)
of the Act in her affidavit in support of
the condonation
application. The plaintiff therein made the following
averments:
“
32.
The Notice in terms of Section 3 of the Act was served on the Member
of the Executive Council (“MEC”) for the [Free
State]
(sic) Provincial Department of Health.
33. My attorney has
advised me that he was mistakenly under the impression that the MEC
was the head of the Health Department.
This incorrect
impression was brought about by his understanding of the State
Liability Act which identifies nominal heads of various
government
departments and institutions. It, however, appears that
although the MEC is the executive authority of the health
department,
the accounting officer of the department has been designated as the
head of the department. Consequently, my
attorney did not serve
the Notice in terms of Section 3 on the Head of the Department.
34. My attorney advised
me that this error was inadvertent and not made intentionally or
designed to prejudice the respondent in
any manner whatsoever.
35. As to the
satisfaction of the requirements for condonation as set out section
3(4)(a) of the Act, the following is relevant.
36. As to the issues of
prescription of my claim and good cause I refer the Court to what I
have already stated above in this regard.
37. I attach hereto as
ANNEXURE “NM4” a confirmatory affidavit of my attorney,
Mr Nonxuba, with regard to all the above.
38. Although the notice
in terms of section 3 was served on the MEC and not the head of the
department, the defendant has in no
manner being prejudiced by this
omission and has litigated in this matter, based on relevant
instructions, in the normal course.
39. I submit that the
Respondent has suffered no prejudice by the omission of serving the
notice on the MEC as opposed to the Head
of the department.”
[12]
In the main Mr Jikwana who appeared for the defendant made three
submissions. The first one is that the court order which
specifically included section 3(1) and 3(4) of the Act excluded
section 4(1) on the basis of the maximum
expressio
unius
est exclusio alterius
.
Secondly, the plaintiff made no mention of section 4(1) of the Act
even in the above paragraphs, so went the submission.
Thirdly
in
Gcam-Gcam
[3]
this court had made it clear that section 4(1) is required to be
condoned as well.
[13] The first two points
are difficult to understand. How it can ever be said that a
litigant in the affidavit must go beyond
the relevant factual
averments and make specific mention of the relevant legislation is
extremely problematic and must therefore
be rejected. In any
event I was not referred to any authority for this submission.
[14]
Similarly the reliance on the maxim
expressio
unius est exclusio alterius,
is on the facts of this case, misplaced. As with the first
point, no authority was cited for its invocation nor was it shown
how
it is relevant in this matter. In
Ndaba
v Ndaba
[4]
,
writing for the full court, Petse JA, as he then was, had this to
say:
“
[35]
In any event, there is a more fundamental reason why the pension
interests of the parties must, on the facts of this case,
be an
integral part of their joint estate. Central to the reasoning
in my colleague’s judgment is, in my view, the
notion that a
pension interest is neither immovable nor movable and that because
the clause under consideration provides that only
immovables and
movables shall be divided equally between the parties, anything else
not expressly mentioned is excluded.
To my mind such a notion
is unsound in law. By its very nature, movable property
comprises both corporeal and incorporeal
things. According to
the learned authors of
Wille’s
Principles of South African Law
typical
examples of incorporeal movables, inter alia, include real rights
such as a pledge, notarial bond, mortgage bond, or any
rights in
personam that are connected with the transfer of movable property
from one person to another or which can be satisfied
by a money
payment. It therefore goes without saying that the parties’
entitlement to each other’s pension interests,
which can be
satisfied by a money payment, falls squarely within the rubric of
movables. Seen in this light, the
maxim
expressio unius est exclusio alterius
is therefore unavailing...”
[15] This brings me to
the last point, the
Gcam-Gcam
case in which the court dealt
quite extensively with section 4(1) and said:
“
[18]
Regrettably, I find myself being in disagreement with the approach
adopted in
Bahle
in so far as the National Commissioner was left out in a
consideration of what constitutes substantial compliance with section
4 (1)(a) of the Act. The wording of the section is plain,
simple and uses direct language. Nothing from a reading of
the
section points to any form of ambiguity or difficulty of
interpretation. It makes it imperative (and not merely
directory)
for a claimant to serve the notice on the head of a
department. In the case of the SAPS such head is the National
Commissioner.
The reason for the requirement that notice to
institute proceedings against a department be served on the
department’s
head at that early stage is not far to seek.
In terms of section 36 of the Public Finance Management Act 1 of 1999
(the PFMA)
the head of a department must be the accounting officer
for the department. The responsibilities of accounting officers
are
set out in section 38 of the PFMA. Section 38 (1)(d)
renders accounting officers responsible for the management of the
liabilities
of the department. It is also significant that the
National Commissioner exercises control over and manages the SAPS in
accordance
with section 207 (2) of the Constitution of the Republic
of South Africa, 1996 and is obliged to perform any legal act or to
act
in any legal capacity on behalf of the SAPS. As far as I
could have discerned argument predicated on the pivotal role of the
head of department does not seem advanced in
Bahle
,
both before the court a quo and the full court.
[19] In terms of section
4 (1)(a) the notice must be addressed to and received by the National
Commissioner. I am mindful
of the pronouncement in
Maharaj
and Others v Rampersad
. wherein the then AD held that in deciding
whether there has been compliance with an injunction the object
sought to be achieved
by the injunction and the question of whether
this object has been achieved are of importance. However,
substantial compliance
which eschews the head of a department, whose
responsibility includes the management of the department’s
liabilities, does
not pass muster. The head must be involved in
the relevant process and in deciding whether the claim should be
resisted or
settled. Were the section to be interpreted
otherwise, the managerial role of the accounting officer would be
subverted.
A door to all manner of possibilities leading to
unnecessary uncertainties would also be opened.”
[16] I am in respectful
agreement with Mbenenge ADJP (as he then was) in
Gcam-Gcam
.
Section 4(1) must be complied with and where there has been
non-compliance an application for condonation in terms of section
3(4) must be made. This, in my view, is what in essence,
Gcam-Gcam
dealt with as in that matter there was no
condonation application, with the plaintiff relying on the notion of
substantial compliance.
The court rejected that and held that a
condonation application was necessary.
[17] In this case the
plaintiff dealt with both the issue of non-compliance with the six
month notice requirement as well as the
failure to serve the notice
on the correct functionary, namely the head of department in her
application for condonation.
[18] Section 3(4)(a) of
the Act reads:
“
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”
[19] Section 3(2)(a)
reads:
“
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);”
[20]
The defendant is clearly being disingenuous and opportunistic and
extremely insensitive to the plight of N[…] who to
date, as
will be shown below, has been frustrated a number of times from
having her case heard in court. It is necessary
to remind the
defendant of what the Supreme Court of Appeal has said on this Act.
In
Madinda
v Minister of Safety and Security
[5]
Heher JA stated that:
“
[6]
Section 3(4)(b) circumscribes a court’s power to grant
condonation by requiring that it be satisfied that
i)
the debt has not been extinguished by
prescription;
ii)
good cause exists for the failure by the
creditor, ie to serve the statutory notice according to s 3(2)(a) or
to serve a notice
that complies with the prescriptions of s 3(2)(b);
and
iii)
the organ of state was not unreasonably
prejudiced by the failure.
[7] The Act is an omnibus
statute which as the preamble states is intended ‘to regulate
the prescription and harmonise the
periods of prescription of debts
for which certain organs of state are liable ; to make provision for
requirements in connection
with the institution of legal proceedings
against certain organs of state in respect of the recovery of debt’.
Thus,
it brings together and rationalises under one statutory
umbrella provisions which were previously scattered through many
statutes.
(These are identified in the schedule of laws amended
and repealed). The relevant repealed provision in this case was
s 57
of the South African Police Services Act, 68 of 1995.
That, in turn, was the successor to other provisions limiting actions
against the SAPS which have, from time to time, received
consideration by the courts. Such provisions have been held to
be in favour of the police who should accordingly, in so far as the
language permits, receive the protection offered by the section
without imposing an unnecessarily heavy burden on a plaintiff:
Minister van Wet en Orde v Hendricks
[1987] ZASCA 55
;
1987 (3)
SA 657
(A) at 662E-662G. See also
Hartman v Minister van
Polisie
1983 (2) SA 489
(A) at 497H-498C;
Mohlomi v Minister
of Defence
[1996] ZACC 20:
1997 (1) SA 124
(CC) at para 9.
Previously, s 57(5) of the 1995 Act permitted a court to dispense
with an equivalent notice of intention
to commence proceedings ‘where
the interests of justice so require’, as to which see
Mugwena
v Minister of Safety and Security
2006 (4) SA 150
(SCA) at
155B-C. Before 1995 there was no power of condonation, a
situation deemed to be unconstitutional in relation to
analogous
limitation provisions under the Defense Act 44 of 1957 in Mohloni’s
case.
[8] The phrase ‘if
[the court] is satisfied’ in s 3(4)(b) has long been recognized
as setting a standard which is not
proof on a balance of
probability. Rather it is the overall impression made on a
court which brings a fair mind to the facts
set up by the parties.
See eg
Die Afrikaanse Pers Beperk v Neser
1948 (2) SA 295
(C)
at 297. I see no reason to place a stricter construction on it
in the present context.”
[21] I do not see any
reason why a stricter interpretation should be placed on section 3(4)
by insisting that there must be a stand
alone prayer for the
condonation of the non-compliance with section 4(1). This in
circumstances in which the facts relevant
for section 4(1)
non-compliance had been specifically pleaded and the defendant
elected not to oppose the condonation application
and raise the very
issue that is now being made a big and fundamental issue. It is
worth emphasizing that section 3(4)(a)
makes specific mention of
subsection (2)(a) which in turn makes specific reference to both the
six months notice requirement and
the requirement for service upon
the organ of state in accordance with section 4(1).
[22] Therefore, the
defendant’s submission that the granting of the condonation for
sections 3(1) and 3(4) excludes non-compliance
section 4(1) is not
only opportunistic but also a disguised attempt at not wanting the
matter to see the light of day in court.
At best it is a
genuine misunderstanding of the purpose of the Act which was
authoritatively explained in
Madinda
and is binding on this
court. Even if I am wrong on this point, upon a benevolent
interpretation of the court order dated
02 October 2018, there must
have been an acceptance by the defendant that non-compliance with
section 4(1) was also granted.
This would explain why the
defendant continued with its preparation for trial even confirming
that the matter was trial ready and
indicating in the pre-trial
checklist that
there are no points in limine and/or interlocutory
issues which have arisen or which are anticipated to arise
.
[23]
The defendant is also wittingly or unwittingly denying the plaintiff
her constitutional right of access to court. Section
34 of the
Constitution
[6]
gives the
plaintiff right of access to court. The defendant is not an
ordinary litigant. It is enjoined by section
7(2) of the
Constitution to respect, protect, promote and fulfil the rights in
the Bill of Rights. It ought to be expected
of the defendant to
avoid a fruitless point taking in which costs are incurred while
nothing is achieved in circumstances where
the point being taken is
in any event not dispositive of the matter.
[24] I earlier on
referred to the defendant being insensitive to the plight of the
plaintiff and her minor child, N[…].
This file paints a
picture in which on a number of occasions the defendant has been
hell-bent on ensuring that the trial does not
proceed. On 6
November 2018 the matter was postponed to the 3 December 2018 at the
instance of the defendant for argument
on a stated case on
liability. On the 3 December 2018 the matter was postponed to
the 7 December 2018 again at the instance
of the defendant. It
is not clear what happened on the 7 December 2018. The matter
was however again before court on
12 December 2018 and the matter was
postponed sine die. On 26 April 2019 the matter again could not
proceed. It is
recorded in that court order that the reason the
matter could not proceed was due to the unavailability of the
defendant’s
expert witness, Professor Cooper. Save
for the 12 December 2018 when the costs were ordered to be in the
cause, the
defendant has been ordered to pay costs on each occasion
the trial did not proceed. There has been no explanation for
this
state of affairs.
[25] However, I am not
persuaded that the defendant should be ordered to pay costs on a
punitive scale or
de bonis propriis
, as Mr Wessels submitted.
Misguided as the defendant was in raising this point on the facts of
this case, it is not a point
that was raised directly and pertinently
before to my knowledge. Courts should be extremely slow in
awarding punitive costs
against litigants as that could have an
undesirable consequence of parties litigating in fear of punitive
costs orders and thus
undermine the development of our legal and
constitutional jurisprudence.
[26] That the defendant
is an organ of state and that the plaintiff and especially the minor
child find themselves in the difficult
position that they are makes
no difference on the issue of costs. Litigants are generally
entitled to raise legal points
they genuinely believe in; whether in
this case the defendant could have genuinely believed in the
submissions that have been made
is not very clear. The
possibility that the defendant was only mistaken and/or ill-advised
cannot be entirely excluded.
[27] In the result the
following order is issued:
1. The
defendant’s special plea dated 16 August 2019 is dismissed with
costs.
_____________________
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Plaintiff: J.J. WESSELS
Instructed by: NONXUBA
INC. c/o POTELWA AND CO.
MTHATHA
Counsel for the
Defendant: T.M. JIKWANA
Instructed by: State
Attorney
MTHATHA
Head
on: 26 August 2019
Delivered
on: 27 August 2019
[1]
Rule
3.5 of the Practice Directive reads: “All civil matters
enrolled for hearing (whether in accordance with rule 37A or
otherwise) shall be subject to a weekly roll call that shall
henceforth be held before a judge (in open court) at each seat of
the Division on Friday at 09h00 four (4) weeks prior to the week in
which the matter is enrolled.”
[2]
Section
4(1)(a) reads:
“
(1)
A notice must be served on an organ of state by delivering it by
hand or by sending it by certified mail or, subjection (2),
by
sending it by electronic mail or by transmitting it by facsimile, in
the case where the organ of state is-
(a)
a notional or provincial department
mentioned in the first column of Schedule 1, 2 or 3 to the Public
Service Act, 1994 (Proclamation
103 of 1994), to the officer who is
the incumbent of the post bearing the designation mentioned in the
second column of the said
Schedule 1, 2 or 3 opposite the name of
the relevant national or provincial department;”
[3]
Gcam-Gcam
v Minister of Safety & Security (187/11) [2017] ZAECMHC 31 (12
September 2017)
[4]
Ndaba
v Ndaba 2017 (1) SA 342 (SCA)
[5]
Madinda
v Minister of Safety and Security, Republic of South Africa 2008 (4)
SA 312 (SCA)
[6]
Constitution
of the Republic of South Africa, 1996