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[2018] ZAGPPHC 106
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Kloppers v MEC for Health Gauteng Province and Another (756/2014) [2018] ZAGPPHC 106 (7 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:756/2014
DATE:7
MARCH 2018
In
the matter between:
HESTER
JOHANNA MARIA
KLOPPERS
PLAINTIFF/APPLICANT
and
MEC
FOR HEALTH GAUTENG PROVINCE
1
st
DEFENOANT/RESPONDENT
DR
MAHLANGU
2
ND
DEFENDANT/RESPONDENT
JUDGMENT
RANCHODJ:
[1]
This is an application for condonation by the applicant for her
failure to give timeous notice
of her intention to institute legal
action against the first respondent as required in section 3 of the
Institution of Legal Proceedings
against certain Organs of State Act
40 of 2002, (the Act) i.e. within six months of the cause of action
having arisen on 18 March
2013.
[2]
The applicant avers that on 18 March 2013 she was admitted to
Leratong Hospital where she gave
birth to twins. The delivery was
performed by caesarean section by the second defendant. She alleges
she experienced undue pain
and discomfort due to complications to her
wounds which led to further surgery performed by another unknown
doctor at the Leratong
Hospital. The complications were of a serious
nature. She was transferred to Coronation Hospital where a
third operation
was performed and she was
in intensive care. Thereafter she was
transferred
to Helen Joseph Hospital
for further remedial treatment and
discharged
on 1o May 2013.
[3]
The applicant says she 'never realised' that
her 'terrible
condition was due to
medical negligence until, during a
later visit
to a doctor at
Coronation Hospital, I was informed
that the doctors
did terrible work.
I went back on my attorneys (
sic)
request and the hospital refused
my records and I could not
verify
the dates or the doctor.'
She does not give the date when
she was made aware that the
doctors did 'terrible work'. This
date
would be significant with regard to
the issue of prescription.
[4]
Regrettably, it gets worse. The
founding affid,vit is
vague in
numerous respects such as when she
consulted 'numerous attorney
firms' to
assist her but they would not
because she had no
funds. She
also says -
'I
approached the Son newspaper to assist
and also contacted Mr
Vorster who
informed and approached the office of
the First Defendant.'
When
it was that she approached the
Son newspaper is not stated;
who
'Mr Vorster' is, is not explained.
[5]
She says further -
'My
attorney of record agreed to
assist
after I contacted her
via the media and she has on
various
occasions attempted to obtain
full instructions from me to proceed
with the case. Which I did not
respond to because of my depression
and embarrassment
(sic).
I
also changed emails and cellphone numbers
due to financial restraints.'
Again,
nothing is said about exactly when
she contacted her attorney
of record.
No doubt her attorney would have
this information and
the affidavit was
in all probability prepared by
the attorney so
this information could
have easily been included but was
not.
[6]
The applicant says she went on
numerous occasions
to the several
hospitals where she was treated to
obtain her
medical records without
success. It is not at all clear
why her
attorneys did not undertake
this task as would be expected
of
a diligent attorney who should
be aware of issues such as
prescription
of a claim.
[7]
A further reason preferred for not
giving the
required notice timeously
in terms of the Act is that
her attorney
took some time to
find a gynaecologist who was prepared
to examine
her and to give an
opinion regarding her conditionand the
cause
thereof. Once again, this
explanation leaves a lot to be
desired. In
my view, an
examination by a gynaecologist was not
a prerequisite
to sending a notice
to the first defendant in terms
of the
Act. She had been
previously told by a doctor at
Coronation Hospital
that the doctors
at Leratong had done a 'terrible
job' in treating
her. By her own
admission, she was aware of at
least some
of the serious consequences
of the alleged negligence of the
second
respondent.
[8]
The applicant says further that she
is a lay
person who has no
knowledge of the law and the
legislative requirements
for the institution
of claims against government institutions.
Yet gain,
this explanation is
unacceptable. The applicant's attorneys had
already issued
summons on 16 March
2016 and had it served on the
first
respondent on the same day.
(There is no record in the
papers
before me of the summons
having being served on the second
defendant.)
The founding affidavit in
this condonation application was
deposed
to on 18 October 2016
which is some seven months after
service
of the summons. The
application was signed by the
applicants attorney
on 2 November
2016. A diligent attorney would have
known at the very
least when summons
was issued and the notice served
on the first
defendant shortly before
that that a condonation application
would have
to be made and would
have done so immediately thereafter
rather
than more than seven months
later.
[9]
The first respondent filed a special
plea on 29
April 2016 in
response to the summons that was
served on him
(or her) and
pleaded that the claim has prescribed
as the requisite
notice in terms
of s3 of the Act had not
been given to
the first defendant
within six months of the cause of
action having
arisen.
[10]
The first defendant (1st respondent in
casu)
had also raised a point
in limine in the answering affidavit
in
this application that although the
notice in terms of the Act
is
dated 8 March 2016 there was no
proof that the notice
was given
before 18 March 2016 i.e. before
the three years from
18 March
2013 expired.
[11]
The applicant then sought leave to
file
a supplementary affidavit during
the hearing which was granted. A
copy
of the notice in terms of
s3(1) of the Act was attached
together with a 'track and trace
report' from the post office which
shows that a registered article
was handed in at the applicant's
post office on 8 March 2016. On
1 March 2016 the first
respondent's
post office sent out a 'First
Notification to recipient'
and the
item was collected by
a N.N
Nicholas Mangezi (presumably on behalf
of the first respondent) on 18
March 2016. Section 4(1) of the
Act provides for sending an article
by 'certified mail.'
In
Madinda v Minister of
Safety
and
Security
2008 (4) SA
312 SCA at 3158 - D Heher
JA dealt with
the words 'certified
mail' by reference to the
Interpretation Act 33
of 1957 which
refers to sending a document by
registered post
and said-
'I
shall assume for present purposes,
there being no evidence to
the
contrary, that there is no material
difference between registered
and certified
post.'
With
respect, I shall assume likewise in
this matter before me.
[12]
Further annexures to the supplementary
affidavit appear
to indicate that the
notice was also sent by email to
'qedani.mahlangu@gauteng
.gov.za· of the
first respondent on 8 March 2016.
The applicant
has not included proof
of delivery of the email in the
supplementary
affidavit.
[13]
In
Sebola v Standard Bank
2012
(5) SA 142 CC at 1680-F para
[87] Cameron J, writing
for the
majority, held, in the context of
delivery of a notice
to a debtor
by a creditor as contemplated in
s129 and s130
of the
National
Credit Act 34 of 2005
-
'87.
To sum up. The requirement that
a credit provider provide
notice in
terms of
section 129(1)(a)
to the
consumer must be understood in
conjunction with
section 130
, which
requires delivery of the notice. The
statute, though giving
no clear
meaning to "deliver", requires
that the credit provider
seeking to
enforce a credit agreement aver and
prove that the
notice was delivered
to the consumer. Where the credit
provider posts
the notice, proof of
registered despatch to the address of
the
consumer, together with proof that
the notice reached the appropriate
post office for delivery to the
consumer, will in the absence
of
contrary indication constitute sufficient
proof of delivery.'
[14]
It seems to me that on an
analogy with
the case in Sebo/a
it is sufficient in this instance,
and I
find it to be so,
that the first notification to sender
on
11 March 2016 is sufficient
proof of delivery on that date
which
would be within the three
year period. If I am wrong on
that score then the fact that
the registered article was collected
from the post office by someone
from the first respondent's office
on
19th March 2016 means that it
was collected on the last
day of
the three year prescription period.
[15]
However, an issue that concerns me
is that
section 5 of the Act
provides-
'Service
of process-
(1)
(a) Any process by which any
legal proceedings
contemplated in section
3(1) are instituted must be served
in the
manner prescribed by the rules
of the court in question for the
service of process.
(b)
. . .
(2)
No process referred to in subsection
(1)
may be served as contemplated
in that subsection before the expiry
of a period of 30 days after
the notice, where applicable, has
been
served on the organ of state in
terms of section 3(2)(a).
(3)
If any process referred to in
subsection
(1) has been served as
contemplated in that subsection before
the
expiry of the period referred
to in subsection (2), such process
must be regarded as having been
served 011 the first day after
the expiry of the said period.'
[16]
Assuming that the applicant's attorneys
served the
notice in terms of s3
of the Act on the date the
respondent
was notified by the post
office as stated in the track
and trace
report, i.e. 11 March
2016 then summons should not have been
served
before the expiry of 30
days from that date i.e. before 10 April
2016.
But then the claim would
have prescribed. As I said, summons
was
served on 16 March 2016.
[17]
The applicant only seeks condonation
for not having
given notice to
the first respondent within six months
of the
cause of action having
arisen in terms of s3 of the
Act.
No condonation has been sought
for non-compliance with section 5(2)
of
the Act.
[18]
I am inclined to grant condonation
for the
failure to serve the
notice within six months of the
cause of
action having arisen -
in spite of the problems I have
identified
(many of which can be
attributed to an apparent lack of
diligence
on the part of the
applicant's attorney) but in the
interests
of justice, fairness to the
applicant and, in my view, the
lack
of any apparent prejudice to
the first respondent. In
Madinga
at
3230-G at para [28] it was held-
'Applications
for condonation should in general be
brought as soon after
the default
as possible. Thereby possible further
prejudice to the other
party and
misconception as to the intentions and
bona tides of
the applicant can
be lessened. A delay in making
the application
should be fully
explained. The failure to do so
may adversely
affect condonation or it
may merely be a reason to
censure the
applicant or his or
her legal advisers withoutlesseningthe force
of
the application. I think that
the latter is the correct attitude
to take in the present matter in
relation to the evaluation of
whether
condonation should be granted. . .
.
Nor has the respondent suggested that
it was prejudiced or misled
by
the additional delay.'
[19]
However, the lack of $n application
for condonation
for lack of compliance
with s5(2) of the Act may yet
be
a hurdle that the applicant
may face but I need not decide
the issue as it has not been
raised in the papers.
[20]
The first respondent was entitled to
oppose the
relief given the manner in which
the applicants case was advanced.
Hence,
even though the applicant succeeds
the respondent should not be mulcted
in costs.
[21]
I make the following order:
21.1
The applicant's failure to give notice
in terms of the provisions of
section 3 of Act 40 of 2002,
within 6
(six)
months after the
cause of action arose be and is
hereby condoned
and the notice dated
9th March 2016 forwarded to the
1
st
respondent and attached to
the founding affidavit as annexure "A"
be and is hereby declared to be
a proper notice in terms
of the
above-mentioned Act.
21.2
Each party to pay their own costs.
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant
: Adv.
S.J Coetzee
Instructed
by
Geyser& Coetzee Attorneys
Counsel
on behalf of Respondent
: Adv. I.S Vobi
Instructed
by
:Mdlulwa Nkuhlu Attorneys
Date
heard
: 26 October 2017
Date
delivered
: 7 March 2018