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[2018] ZAGPJHC 518
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Rauwane obo Revelation v MEC for Health Gauteng Provincial Government (19009/14) [2018] ZAGPJHC 518 (12 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 19009/14
In the matter
between:
RAUWANE, JACOBETH
obo
REVELATION
Plaintiff
and
THE MEC FOR HEALTH GAUTENG
PROVINCIAL
GOVERNMENT
Defendant
JUDGMENT ON THE LEAVE TO APPEAL
APPLICATION
MAHALELO,
J
:
[1] I shall refer to the parties as
they were referred in the main action. The defendant is the
applicant in this application
for leave to appeal against the whole
of the order which I granted on 6 August 2018 dismissing the
defendant’s five special
pleas. Reasons for judgment were
handed down on 27 August 2018.
[2] The defendant served a notice of
application for leave to appeal on 7 August 2018. This predated
the handing down of the
reasons for my judgment. The defendant
indicated in its notice that it would amplify its grounds for appeal
on receipt of
reasons for judgment. The defendant was afforded an
opportunity to supplement its notice of appeal but nothing much came
out of
it.
[3] It is necessary that I set out the
grounds of the defendant’s proposed appeal. They are the
following:
“
1. The learned Judge erred
in dismissing the defendant’s special pleas.
2. The learned Judge erred in not
taking into account, sufficiently or at all that the Head:
Health was not given notice prior
to the institution of legal
proceedings, as required in terms of section 3(1)(a) of the
Institution of Legal Proceedings Against
Certain Organs of State Act
40 of 2000.
3. The learned Judge erred in not
taking into account, sufficiently or at all that, as mother and
natural guardian of Revelation
Rauwane (‘the minor’), she
lacked locus standi to institute the action on the minor’s
behalf and to administer
the affairs and property of the minor.
4. The learned Judge erred in not
taking into account sufficiently or at all, that the plaintiff’s
combined summons issued
out of the above Honourable Court on 27 May
2014 under case number 14/19009 is void and of no effect.
5. The learned Judge erred to take
into account sufficiently or at all, that, the plaintiff’s
summons were improperly served.
6.
The learned Judge erred in not taking into account sufficiently or at
all that the plaintiff’s purported claim in her personal
capacity to the value of R1 752 000 is prescribed.
”
[4] It is apparent from the notice of
application for leave to appeal that the grounds for the proposed
appeal are exactly the same
as the special pleas raised at the
commencement of the proceedings.
[5] It is trite that the requirement
for leave to appeal is the existence of reasonable prospects of
success on appeal. An
application for leave to appeal must
succinctly and clearly specify the findings of fact and rulings of
law which the applicant
intends to appeal. It is necessary for
the applicant to furnish all the information necessary to enable the
court to decide
whether or not leave ought to be granted. The
application must not be expressed in general and ambiguous terms.
[6] I am obliged to dispassionately
consider the application for leave to appeal and decide whether there
is a reasonable prospect
that an appeal court will come to a
different conclusion than the one arrived at or whether there are any
compelling reasons that
the appeal should be heard.
[7] Ms Makopo, who appeared for the
defendant at the hearing of the special pleas, submitted that the
thrust of the application
is based on the fact that there is no
authority or clarification on the legal principles regarding failure
to comply with section
2(2) of the State Liability Act. She
submitted that leave should be granted to appeal to the Supreme Court
of Appeal so that
in future there is certainty.
[8] Mr Du Plessis SC, who appeared for
the plaintiff submitted that the application for leave to appeal has
no merit and if anything,
is a delaying tactic on the part of the
defendant.
[9] It is usually a consideration to
be made if there are any compelling reasons for the appeal to be
heard. The defendant provided
no substantiation for its argument in
this regard except to say that the plaintiff’s combined summons
was served contrary
to a direct prohibition of the law contained in
section 2(2) of the State Liability Act, 2011 2011 (as amended) (“
the
Act
”) and thus, void and of no force or effect because they
were not served on the State Attorney within seven days of issue.
[10] The purpose of section 2(2) of
the Act is to ensure that the State Attorney obtains notice of all
legal proceedings instituted
against an organ of state. The Act does
not provide for any consequences if the summons is not served on the
State Attorney within
seven days of issue. In my view, the
plaintiff’s non-compliance with the seven-day period provided
for in the said
section does not result in the summons being a
nullity. The plaintiff’s intention to institute this action as
well as the
summons duly came to the attention of the defendant and
the State Attorney and the latter advised the defendant accordingly
and
took all relevant and necessary steps to protect its interests.
As stated in my reasons for judgment the defendant did not suffer
any
prejudice as a result of the said non-compliance with the provisions
of the Act and in my view the Act is no longer applicable.
[11] In any event, I have duly
considered the submissions by the defendant on all the grounds of the
proposed appeal and I respectfully
disagree for the reasons which are
fully set out in a comprehensive written judgment which was handed
down on 27 August 2018.
Suffice it to say that there is no need
to repeat such reasons in this judgment.
[12] In the premises, I am of the view
that the defendant does not enjoy a reasonable prospect of success on
appeal, and there are
no compelling reasons why the appeal should be
heard.
[13] In the result, the following
order is made:
1.
The application for leave
to appeal is dismissed with costs.
________________________________________
M B MAHALELO
JUDGE OF THE
HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES
For the plaintiff: Mr D Du Plessis
Instructed by Du Plessis Attorneys
For the defendant: Adv N Makopo
Instructed by: State attorney
Johannesburg
Date heard on: 03/09/2018
Judgment delivered on: 12/09/2018