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[2018] ZAFSHC 146
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Ntobo v The MEC For Health For The Free State Province (2196/2017) [2018] ZAFSHC 146 (21 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of Interest to
other Judges: YES/NO
Circulate to
Magistrates:
YES/NO
Case number: 2196/2017
In
the matter between:
PALESA
ASARINAH NTOBO
[previously
MOLELEKI]
Applicant/Plaintiff
and
THE
MEC FOR HEALTH FOR THE
FREE
STATE
PROVINCE
Respondent/Defendant
JUDGMENT
BY:
SNELLENBURG, AJ
DELIVERED
ON:
21 SEPTEMBER 2018
[1] This matter concerns an
application for condonation in terms of section 3(4) of the
Institution of Legal
Proceedings against certain Organs of State Act
40 of 2002 [
the Act
]
for failure to timeously deliver a notice of intention to commence
legal proceedings against an organ of state in terms of sections
3(1)
and (2) of the said Act.
[2] Section 3 of the Act
provides as follows:
“
3
Notice of intended legal proceedings to be given to organ of state
(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 proceedings-
(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.
(3) For purposes of subsection
(2) (a)-
(a) a debt may not
be regarded as being 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 section 2 (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
subsection (2) (a), the creditor
may apply to a 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.
(c) If an
application is granted in terms of paragraph (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.”
[3] Mrs Palesa Asarinah Ntobo
(the applicant) gave notice [
the notice]
] on 12 January 2017
to the Member of the Executive Council for the Department of Health
in the Free State Province (the respondent)
of her intention to
institute legal proceedings to claim damages suffered as result of
medical negligence by healthcare workers
during the period 29 May
2014 to 7 June 2014, which healthcare workers were in the employ of
the respondent and who were acting
in the course and scope of their
employment with the respondent at State hospitals.
[4] After receipt of the said
notice the respondent informed the applicant that the notice was not
given within
the 6 month period as prescribed in the Act. The
respondent thus did not consent in writing to the institution of the
legal proceedings
upon receipt of a notice which does not comply with
all the requirements set out in section 3(2).
[5] The applicant subsequently
issued summons against the respondent in this Division under civil
case cover
number: 2196/2017 [
the action
] wherein she claims
payment of amounts for special and general damages from the
respondent (as defendant).
[6] The plaintiff made the
following allegations pertaining to the delivery of the notice in her
particulars
of claim:
“
11.1 The Plaintiff
gave the Defendant notice of intended legal proceedings in accordance
with the provisions of Section 3
of the Institution of Legal
Proceedings against Certain Organs of State Act, 40 of 2002 (“the
2002 Act”) on 12 January
2017.
11.2 Having regard
to the following facts, the Defendant should not rely on the
Plaintiff’s failure to have given
notice within six months of
the date on which the Plaintiff’s claim arose, and should
condone same:
11.2.1 The fact that the
claim has not prescribed;
11.2.2 The fact that good
cause for the failure to have given notice within six months of the
aforesaid date exists, by virtue
of the combination of:
(a)
The
fact that no member of the Defendant’s staff advised the
Plaintiff that her damages was, or even might be, the result
of
negligence on the part of staff members of the Defendant’s
staff;
(b)
The
Plaintiff’s lack of requisite medical knowledge to enable
herself [to] arrive at that conclusion, in combination with
the
difficulties which the Plaintiff will have experienced in arriving at
that conclusion without the benefit of expert medical
advice, which
could only be obtained in the course through the offices of the
Plaintiff’s Attorneys; and
(c)
The
inherent unreasonableness of expecting a person in the Plaintiff’s
position, in the situation in which the Plaintiff found
herself in
the circumstances, to gather information, to arrive at conclusions as
to negligence, to seek and obtain legal advice,
and to give written
notice, all within six months; and
11.2.3 The fact that the
Defendant has not been prejudiced, alternatively has not been
unreasonably prejudiced, by any delay
in this regard.
”
[7] In its plea to the
applicant’s particulars of claim the respondent denied that the
applicant’s
claim was competent for want of compliance with the
requisite notice requirements contained in section 3(2)(a) of the Act
as the
notice was delivered after the six month period prescribed in
the said subsection. The respondent pleaded that it was prejudiced
by
the non-compliance. For sake of completeness it is convenient to
repeat the content of the special plea in relevant parts:
“
1.
The cause of action arose on 29 May 2014.
2.
The Plaintiff served the Notice in terms of Section 3 of Act 40 of
2002 upon the
Defendant on the [
sic
]
12 January 2017.
3. The
Plaintiff failed to comply with the provisions of the said Act in
that the
Plaintiff failed to serve the notice within the six month
prescribed period.
4. The
Defendant is prejudiced by the conduct of the Plaintiff.
”
[8] The special plea triggered
the present application.
[9] The applicant’s notice
of motion as served on the respondent provided for the following
relief
– I have summarised the relief for sake of convenience :
(i) a declaratory order confirming that the applicant’s
notice
of 12 January 2018 constituted compliance
with the relevant legislative requirements
of
section 3(2)(a) of the Act; (ii) in the alternative the applicant
applies for condonation in terms of the provisions of section
3(4) of
the Act in the event of a finding that she did not comply with the
section 3 notice requirement; (iii) in the event that
the application
is not opposed, costs on unopposed basis on attorney and client scale
and; (iv) in the event of the application
being opposed, then costs
occasioned by the opposition on the scale as between attorney and
client.
[10] The respondent’s opposition as
appears from the answering affidavit is premised on the following
overarching
grounds, namely (i) that the notice could not constitute
compliance with the legislative requirements for a notice in terms of
the said section as firstly, the notice was only sent after the
period prescribed in section 3(2)(a) and secondly as the notice
does
not comply with the requirements of section 3(2)(b); (ii) that the
applicant has failed to show good cause for the delay;
and (iii) that
the respondent is prejudiced by the applicant’s failure to
comply with the prescribed notice requirements.
[11] At the outset certain observations are
called for after considering the manner in which the notice has been
dealt
with by the parties in their respective pleadings in the
action:
11.1 The plaintiff did not allege that the notice
was delivered within the 6 month period provided for in section
3(2)(a).
The plaintiff instead dealt with the reasons, on her
version, as to why the respondent should not rely on her failure to
comply
with that requirement or why condonation should be granted to
her for her non-compliance.
11.2 As far as the special plea of the respondent
goes, the respondent only complained of the fact that the notice was
delivered
after the 6 month period prescribed in section 3(2)(a) and
that as result of the aforesaid failure the respondent was
prejudiced.
The respondent did not in its special plea rely on the
ground that the contents of the notice did not comply with
requirements
of section 3(2)(b). It will be recalled that the
respondent after receipt of the notice also only took issue with the
fact that
the notice was not delivered within the prescribed 6 month
time period. It took no issue with the contents of the notice and
certainly
did not contend that the notice, as far as its contents are
concerned, in any manner failed to comply with what is required in
terms of section 3(2)(b).
[12] At the outset of the argument on behalf
of the applicant her reliance on the main relief was abandoned. This
abandonment
was properly made. The last email by means of which
information pertaining to the healthcare services rendered to the
plaintiff,
which forms the subject matter of the action and this
application, were supplied was dated and received by the applicant’s
attorneys on 8 July 2016. This date is accepted by the applicant to
be the date, on her version, on which the debt became due and
thus
the date from which the six month period for the notice would run.
The applicant’s notice is dated 12 January 2017 and
was
received by the respondent sometime later, at the very worst for the
applicant on the 24
th
of January 2017 (on the respondent’s
version). Thus, the notice was not delivered within the 6 month
period on the applicant’s
own version and the main relief was
not tenable. This is also in line with the allegations in the
applicant’s particulars
of claim.
[13] It remains to determine whether the
applicant has satisfied the requirements for condonation in terms of
section
3(4) of the Act.
[14] The salient facts underlying the
applicant’s cause of action can succinctly be summarised as
follows:
14.1 On 29 May 2014 the applicant visited the
Ladybrand Hospital as a 24 year old expectant female. The health care
practitioners
indicated that they would do a sonar to determine the
expected date of delivery. It is the applicant’s case that this
sonar
was never done. On 4 June 2014 the applicant presented herself
at the Mantsopa Hospital. At that stage an ultrasound was done and
showed no gestational sack. The applicant was advised to return on 5
June 2014 so that another ultrasound could be done. On 5 June
2014 at
15h10 the applicant arrived at the casualty department of the
Mantsopa Hospital with vaginal bleeding and severe abdominal
pain.
The applicant was taken for a sonar and a pregnancy test was done.
The pregnancy test indicated a positive result.
14.2 On 5 June 2014 at 15h55 it was recorded that
the applicant had a miscarriage at nine weeks and six days by vaginal
speculum.
The allegation continues as follows: “
Os
open and retained products of conception noted on os.”
It
was recorded that the plaintiff’s uterus was empty and the
negative products of conception noted.
14.3 On 6 June 2014 at 07:49 the applicant
reported lower abdominal pain whilst still being hospitalised. She
was however
discharged on 7 June 2014 without any further treatment.
14.4 On 13 June 2014 the applicant went to see Dr
Brits who referred her for emergency surgery following a ruptured
ectopic
pregnancy. When arriving at Mediclinic, Bloemfontein a
laparotomy for the ectopic pregnancy was performed.
14.5 The applicant alleges that she was not
informed of what had transpired by any of the health care
professionals and was
left in the lurch. The applicant complains, in
essence, of the negligent misdiagnosis and/or negligent failure to
detect and treat
the ectopic pregnancy.
[15] The applicant’s husband sought
assistance from Workerslife, being an employment legal services
programme
offered by his employer, on 20 October 2014.
[16] This entity instructed Van Zyl & Le
Roux Attorneys, Pretoria to act on the applicant’s behalf. The
instruction
letter was dated 31 October 2014 and signed at Pretoria.
[17] The applicant states that her first
consultation with the said attorneys took place on 8 December 2014.
On this
day the applicant signed the necessary consent form to
authorise the aforesaid attorneys to have access to and receive
copies of
all medical records recorded in the consent. The applicant
also signed a special power of attorney.
[18] On the same day the attorneys directed
the first of several letters to the Superintendent of the Mantsopa
Hospital
[
the Superintendent
] to request copies of all medical
records of the applicant. The consent, special power of attorney and
a copy of the applicant’s
identity document were appended to
the letter and the reasonable costs involved for making copies of the
medical records were tendered.
[19] A further letter to the Superintendent
followed on 14 January 2015. In this letter reference is made to
various
telephone conversations which had transpired and the
hospital’s banking details are requested for payment of the
amount of
R546.00 required to obtain copies of the medical records.
[20] A letter in similar terms was sent to
the Superintendent on 17 February 2015. Due to the failure of the
hospital
to make the medical records available a formal request in
terms of the
Promotion of Access to Information Act 2 of 2000
[
PAIA
]
was made on 16 March 2015.
[21] Hospital records were filed on 7
September 2015. The records were served on Messrs Honey Attorneys,
Bloemfontein.
[22] These records were forwarded to a
certain Mr Joubert for his perusal and consideration and also to a
nursing expert
to advise regarding the viability of a claim against
the parties on the basis of negligence.
[23] Although not specifically dealt with,
it appears that a letter was sent to the Mantsopa Hospital on 15
March 2016
which specifically requested sonar reports of scans that
were taken. On 8 July 2016 the Legal Administration Officer, Legal
Services,
Free State Department of Health addressed email
correspondence, pursuant to the request for the said scans, to which
email an affidavit
of Dr Lethole was appended. In the affidavit Dr
Lethole advises that on 5 May 2014 and 4 June 2014 “
the
Sonar machine did not have a print out
”
.
The applicant contends that this affidavit confirms that the sonar
machine was defective in some manner. The reference to 5 May
2014 is
apparently erroneous if cognisance is taken of the common cause facts
pertaining to the applicant’s medical history
underlying the
present cause of action, but for purposes hereof nothing turns on
this.
[24] The applicant states that after receipt
of this information a brief was prepared for counsel for preparation
of
the particulars of claim and statutory
section 3
notice which
notice was duly prepared. The particulars of claim was issued on 5
May 2017 and served on 10 May 2017.
[25] The applicant states that only after
collating all the documentation could the applicant give instructions
for
drafting of the particulars of claim and the notice. The
applicant contends that she only had knowledge of all the facts
giving
rise to the debt after the email of 8 July 2016.
[26] The applicant explains that she was
contacted by the Pretoria attorneys for a consultation for
preparation of this
application and that all the necessary annexures
were forwarded to counsel for preparation of this application at the
end of 2017.
Due to the festive season holidays the application was
only attended to in the new year. The application was served on the
respondent
on 9 May 2018.
[27] The applicant states that the slight
delay, if any, was as result of her being in the Free State and her
attorneys
in Pretoria.
[28] As stated above
section 3(4)
provides
that a court may grant an application to condone non-compliance with
the requirements of section 3(1) and (2) of the Act
only if it is
satisfied that-
28.1 the debt has not been extinguished by
prescription;
28.2 good cause exists for the failure by the
creditor; and-
28.3 the organ of state was not unreasonably
prejudiced by the failure.
The requirements are
conjunctive and
must be established by the applicant for condonation.
[1]
In essence the court is to exercise a wide discretion
[2]
judiciously by considering all the relevant circumstances. Also, in
general terms, the interests of justice play an important role
in
condonation applications.
[3]
[29] The first requirement is satisfied. The
applicant has proceeded from the basis that the “injury”
itself
occurred on 29 May 2014. The summons was issued on 5 May 2017
and served on the respondent on 10 May 2017. The debt has not
prescribed.
[30] The second requirement comprised
thereof that the applicant must show good cause for the failure. It
is well established
that good cause may include a number of factors
that are entirely dependent on the facts of each case.
[4]
Equally well established is the fact that an applicant
for condonation is required to set out fully the explanation for the
delay
and such explanation must cover the entire period of the delay
and must be reasonable.
[5]
This entails that the applicant must at least furnish an
explanation of her default sufficiently full to enable the Court to
understand
how it really came about, and to assess her conduct and
motives.
[6]
As far as good cause is concerned, strong prospects of success of the
intended claim may for instance mitigate fault whilst no
merits may
render mitigation pointless.
[7]
[31] As stated above, the respondent took
issue with the fact that the notice was served after expiry of the 6
month
period. The fact that the notice was late is now common cause
between the parties.
[32] The respondent, for purposes of the
applicant’s application for condonation:
32.1 Denies that the applicant has established
good cause.
32.2 To this end the respondent takes issue with
the applicant’s explanation for the delay on the basis that the
explanation
lacks particularity and is not reasonable according to
it.
32.3 The respondent submits that the delay was
unreasonable.
32.4 Lastly, on this issue, the respondent
contends that the applicant has not shown that she has prospects of
success. To
this end the respondent argues that the applicant’s
“case is mounted on two important aspects” namely the
nursing
expert’s findings and the affidavit of the doctor
confirming that the sonar machine was not working. These contentions
are
discussed below.
[33] The respondent in essence argued that
the applicant either had knowledge of the facts constituting the debt
much
sooner than the applicant claims to have acquired those facts,
or the applicant would have had knowledge of the facts constituting
the debt earlier if she took reasonable care. The respondent thus
argues constructive knowledge.
[34] The respondent referred specifically to
the letter of 20 October 2014 by the applicant’s husband
addressed
to Lesaka Legal which creates the impression that he, at
least, at that date (some 4 months after the medical treatment) held
the
opinion that the medical practitioners were negligent (the exact
wording is that he “
wants
to sue the hospital and
claim
for pain suffered and human dignity for lack of experience
”
).
[35] The letter must be seen in context.
Lesaka is connected to Workerslife Legal Services. This is clear from
paragraph
6 of the letter of instruction issued by Workerslife to Van
Zyl & Le Roux Attorneys which forms part of annexure G to the
founding
papers. The letter was apparently written by the applicant’s
husband with the purpose of motivating the said legal services
to
come to his assistance in suing the hospital. The letter also shows
that the author did not appreciate the intricacies of what
had
transpired. He for instance records that Dr Coning informed
them that the baby was still inside the applicant’s
womb,
whilst this allegation is improbable and contrary to the pleaded
prognosis and the emergency procedure that followed, namely
emergency
surgery for a ruptured ectopic pregnancy (it is common cause between
the legal representatives for the parties that an
ectopic pregnancy
presents when, in simple terms, the embryo attaches outside the
womb/uterus).
[36] In
Links v Member of the Executive
Council, Department of Health, Northern Cape Province
2016
(4) SA 414
(CC) para 35 the Constitutional Court applied the
following dicta by Cameron JA and Brand JA in the
Minister of
Finance and Others v Gore NO
2007 (1) SA 111
(SCA) paras 18
– 19:
“The defendants' argument seems to us to mistake the nature of
knowledge that is required to trigger the running of prescriptive
time. Mere opinion or supposition is not enough: there must be
justified, true belief. Belief, on its own, is insufficient. Belief
that happens to be true (as Rabie had) is also insufficient. For
there to be knowledge, the belief must be justified.'…….
'It follows that belief that is without apparent warrant is not
knowledge; nor is assertion and unjustified suspicion, however
passionately harboured; still less, is vehemently controverted
allegation or subjective conviction.”
[37] Notwithstanding that the letter at most
represents the applicant’s husband’s opinion, which
cannot
be equated to the applicant’s knowledge, it is clear
that not only did the husband not have a proper grasp of the facts
that
would constitute the debt itself, but he merely held an
‘unwarranted’ opinion at that stage. It was a mere
suspicion
of negligence by the applicant’s husband amounting to
supposition.
[38] The respondent contends, with regard to
the issue of when the applicant ought to have acquired knowledge of
the
necessary facts constituting the debt, that there are periods
during the course of the matter which are simply not dealt with by
the applicant. For example, the emergency surgery occurred on 13 June
2014. The applicant is silent on what transpired from then
until 20
October 2014 when her husband requested legal assistance and the
attorneys were appointed. The respondent also points
out the period
from receipt of the hospital records during September 2015 to the
receipt of the information regarding the sonar
machine on 8 July
2016.
[39] The applicant had attorneys appointed
for her during October 2014 after the applicant sought assistance
through
her husband’s employment legal services programme. The
applicant does state that she was not informed by the medical
practitioners
of the facts surrounding the treatment and diagnosis
which eventually gave rise to her claim. The applicant’s
attorneys made
the first request for her medical/hospital records
almost immediately after their appointment was finalised and they had
the benefit
of consulting with the applicant.
[40] As far as the lapse of time since the
receipt of the information until the last delivery of information on
8 July
2016, the following.
40.1 An expert was appointed to assist the
applicant in determining whether there had in fact been any
actionable negligence
in the diagnosis and/or treatment of her. This
conduct was reasonable in the circumstances.
40.2 I have been able to discern that a letter was
addressed during March 2016 which specifically requested copies of
the
sonar images (the Department of Health and the doctor in his
affidavit refer to 5 May 2014 and 4 June 2014 as stated above). This
request would have been the result of the perusal of the hospital
records that had been supplied.
[41] The respondent’s answering
affidavit did not foreshadow the constructive knowledge argument. The
respondent
dealt with the applicant’s exposition on the history
of the matter and specifically the time lapses in between as part of
its argument that there was no reasonable explanation for the failure
to deliver the notice within the six month period. The constructive
knowledge argument did also not appear from the plea.
[42] Affidavits perform a dual function in
motion proceedings, namely that of the pleading and the evidence to
prove
the allegations.
[8]
The applicant cannot be criticised for not addressing this issue with
more particularity in the circumstances. I am in any event
not
persuaded on the facts of the matter that it can be found that the
applicant should have been aware of the facts constituting
the debt
sooner had she taken reasonable care. The issue was not properly
raised in the answering affidavit. In light of my ultimate
conclusion
the matter can be determined by taking into consideration that the
delay to give the required notice consisted of several
months as
opposed to a few days. I will also accept that the explanation for
the delay may then be described as being weak. That
being said, the
facts do not show wilful default as will appear from the discussion
below. Notwithstanding the paucity of information
regarding certain
periods, the delay is not so unreasonable as to warrant the dismissal
of the application and I am able to understand
how the greater part
of the delay was occasioned as will appear below.
[43] It will be recalled that the second leg
of the argument involves the contention that the applicant had
knowledge
of the facts constituting the debt before the email of 8
July 2016. In light of the fact that I accept that the delay must be
several
months, it is not necessary to discuss this leg of the
argument in detail as the outcome will amount to what I am willing to
accept
in favour of the respondent, namely a delay of several months.
[44] As the respondent’s argument in
this respect also underlies the submission that the applicant has not
shown
that she has prospects of success with the intended claim, it
is convenient to evaluate the contentions at this juncture.
[45] The respondent contends that the
affidavit did not reveal anything new in as much as Dr Lethole’s
affidavit
simply records that the printer did not work and that a
copy of the image which was displayed could not be generated. The
respondent
contends that the grounds of negligence on which the
applicant relies would have been in her knowledge before this
affidavit was
supplied. In conjunction with this the respondent
argues that the applicant should have disclosed the expert report or
advice on
which she relies as this would show what facts she relied
on to constitute the debt. The respondent also contends that the fact
that no image could be printed does not mean that the operator could
not see what was displayed.
[46] Suffice it to say that the parties have
very different positions regarding the significance of Dr Lethole’s
affidavit. The applicant contends that the affidavit confirms that
the machine was malfunctioning in one or the other respect.
[47] I need not determine the dispute
regarding the purport of Dr Lethole’s affidavit. After this
information
was received the applicant was advised that the debt was
claimable and this prompted the instructions to proceed with the
drafting
of the summons and the notice. Even if the respondent’s
contentions to the effect that the affidavit did not disclose new
or
further facts are accepted
in argumento
, the applicant would
not have known the import of the images until the images were either
delivered or the applicant was advised
that no images were available
and the reasons why no images were available.
[48] On the facts of the matter the
applicant clearly attaches a different conclusion to the information
pertaining
to the fact that no sonar images could be or was
generated.
[49] The reason for the delay until 8 July
2018 is known, namely the applicant requested information (sonar
images)
which were pertinent and which is clear would in the normal
course have formed part of her hospital records. The applicant only
received the reply that no images were available as well as the
reasons therefore on 8 July 2016. I have indicated that I am accept
that there is a paucity of information pertaining to this time
period, namely from receipt of the hospital records until the request
of the sonar images. The delay from March 2016 until 8 July 2016 is
however known, namely the explanation for the absence of the
sonar
images were only supplied on 8 July 2016.
[50] The respondent’s criticism in
respect of the explanation for the delay as far as lack of details
are concerned
of when exactly the instructions to counsel were given
to draft the notice; why the consultation could only be held when it
was
and what the reason for the delay between the consultation and
the eventual delivery of the notice was, has more force. There is
clearly a paucity of information in this regard.
[51] There is of course a distinction
between the need to show good cause for the delay to deliver the
notice and the
period after the notice was supposed to be delivered
until the application for condonation has been made. The first period
forms
part of the good cause requirement required by section 3(4)
whilst the latter period does not form part of the good cause
requirement
but may play a role in the overall exercise of the
court’s discretion.
[52] The erroneous belief, of whomever
drafted the applicant’s founding affidavit, that the notice had
in fact
been delivered timeously clearly informed the manner in how
the applicant’s case was ultimately presented. The applicant is
however bound to the manner in which her case has been presented.
[53] In light of the established principle
that some issues, such as prospects of success may mitigate a weak
explanation
for delay, it serves to evaluate the applicant’s
prospects of success and other facts specific to this matter.
[54] As far as the applicant’s motives
and conduct must be evaluated it is clear that the applicant was
desirous
to institute an action and to take steps as result of the
healthcare services which she perceived to have been rendered in
negligent
manner. I have no doubt that her motives are honourable.
She simply wants to pursue her claim against the respondent. I also
have
no doubt that the applicant’s delay was not the result of
any intentional disregard for the respondent’s rights.
[55] On the facts in this case I do not
agree with the respondent’s submission that the expert advice
had to be
produced in the form of the report or discussed in more
particularity in this matter. The applicant appended the particulars
of
claim and dealt with the grounds on which she claims that the
healthcare professionals were negligent in their diagnosis and
treatment.
[56] I am satisfied that the grounds of
negligence on which the applicant relies are quite apparent from the
allegations
in both her founding affidavit as well as her particulars
of claim. I am satisfied that the applicant has shown strong
prospects
of success based on the allegations in the papers and
particulars of claim. Whether the applicant will ultimately be
successful
is not the test at this stage.
[57] The respondent was also partially
culpable in the delay by not reacting to the numerous requests for
information
when the same was made. The first request, although not
by means of PAIA, was made on 8 December 2014. The hospital records
were
only made available during September 2015, after a formal
request was made in terms of PAIA, whilst it appears that the records
were promised much earlier. I find so because the Superintendent
apparently advised the applicant’s attorneys what the
reasonable
costs of making copies of the records would be. This was
already during January 2015.
[58] When considering good cause I am
satisfied that the applicant has satisfied this requirement if all
the facts specific
to this matter are considered cumulatively. The
strong prospects of success do mitigate the weak explanation for the
delay. The
facts of the matter do not justify a finding that the
applicant made herself guilty of wilful default. I have no doubt that
the
applicant was and is desirous to pursue her claim.
[59] It needs to be determined whether the
organ of state was not unreasonably prejudiced by the failure. The
respondent
claims that the delay was unreasonable and that she was
prejudiced. In amplification of the prejudice, which it only pleaded
in
general terms in the special plea, the respondent contends in
these proceedings that “
one
of the doctors
”
who attended to the
applicant, namely Dr Motsie, is out of the country and was out of the
country when these proceedings were instituted
on 5 May 2017.
[60] The respondent complains that she was
not given an opportunity to consult with Dr Motsie in order to
determine
what had happened and to consider whether the matter should
be settled or not.
[61] The aforementioned prejudice is the
totality of prejudice relied upon by the respondent.
[62] It was held in
Rance
supra
, that whereas
good cause primarily concerns the applicant's conduct and its
motives, the absence of unreasonable prejudice shifts
the focus onto
the State organ and the protection of its interests by receiving
timeous notice.
In
Madinda
supra
it was held that
a common sense analysis of facts are required
and
that prejudice should not be assumed in absence of evidentiary basis.
[63] To my mind the respondent has not shown
any unreasonable prejudice which would justify the dismissal of the
application
on that ground alone or conjunctively with other grounds.
Firstly, on the respondent’s own version Dr Motsie is one of
the
doctors who treated the applicant, not the only doctor. Secondly,
Dr Lethole was able to depose to an affidavit regarding the
functioning
of the sonar machine. Thirdly, the respondent merely
states that she was not able to consult Dr Motsie when the matter was
instituted,
after the notice was received, for purposes of deciding
whether the matter should be settled or not. The respondent does not
state
that Dr Motsie’s evidence would not be available at all.
The respondent also did not state what steps, if any, the relevant
department took to make contact with Dr Motsie or for that matter
what evidence Dr Motsie would be able to give or not. Clearly
there
are other doctors with personal knowledge of the matter like Dr
Lethole.
[64] I am not persuaded that any
unreasonable prejudice would be suffered by the respondent if
condonation is granted.
There are several options available to
procure Dr Motsie’s instructions and testimony in the event
that he may still be out
of the country when his attendance is
required.
I would also have expected the
respondent to say that Dr Motsie would not be available in future if
that was the case. The applicant
also correctly points out that there
are numerous means to take instructions from Dr Motsie in future even
if he is out of the
country. The same applies if Dr Motsie’s
evidence is required by the respondent.
[65] The following issues remain for
determination, (i) the respondent’s contention that the notice
in any event
did not satisfy the requirements of section 3(2)(b);
(ii) the failure of the applicant to apply for condonation the moment
she
realised that condonation was necessary; and (iii) the costs.
[66] The respondent’s reliance on the
fact that the notice did not satisfy the criteria of section 3(2)(b)
is
with respect without merit. The notice clearly complied with the
requirements of section 3(2)(b). The respondent did not rely on
this
issue in the first response after it had received the notice nor in
its special plea. Had this truly been an alive issue,
the respondent
would have raised this issue. It clearly did not raise the issue
because the notice satisfies the statutory requirements
regarding the
contents thereof.
[67] The second issue pertains to the
obligation of an applicant to seek condonation immediately when she
realised that
it was necessary. This issue plays a role in the
exercise of my overall residual discretion. It is clear that the
applicant’s
legal representatives laboured under the impression
that the notice was due in January 2017. Somehow the applicant’s
legal
representatives came to be under the erroneous impression that
the 6 month period would only expire on 18 January 2017. This
explains
why the applicant did not deal with the instructions and
lapse of time since receipt of the email of 8 July 2016 in more
detail.
I am however mindful of the circumstances of the matter and
conclude that the failure to make the application sooner should not
deprive the applicant, on the facts of this matter, from the right to
pursue her claim against the respondent. The prospects of
success
does mitigate the weak explanation in this regard.
[68] When considering the facts of the
matter, even when accepting a longer delay as the respondent contends
for, I
am satisfied that the debt has not prescribed, the applicant
has satisfied the good cause requirement and the respondent is not
unreasonably prejudiced by the failure to deliver the notice
timeously.
[69] The applicant, during reply, indicated
that she no longer persisted with the prayer for attorney and client
costs
and would only seek costs on the scale as between party and
party. The respondent likewise argued that there were no grounds for
an order on the scale as between attorney and client if the relief
was granted.
[70] The respondent’s opposition,
although ultimately not successful was not unreasonable. It would not
have warranted
a cost order on attorney and client scale. The
applicant has ultimately achieved substantial success.
[71] In the premises the applicant’s
failure to comply with the requirement of section 3(2)(a) of the Act
should
be condoned.
[72]
IT IS ORDERED:
1.
Prayer
2 of the notice of motion is granted;
2.
The
respondent is ordered to pay the costs occasioned by the opposition
of the application.
N. SNELLENBURG, AJ
On
behalf of the applicant: Adv
R van der Merwe
Honey
Attorneys,
Bloemfontein
On
behalf of the Respondent: Adv ND Khokho
State Attorney,
Bloemfontein
[1]
Minister of Agriculture & Land Affairs v CJ Rance
(Pty) Ltd
2010 (4) SA 109
(SCA) para 11.
[2]
Madinda supra para 8; Premier, Western Cape v
Lakay
2012 (2) SA 1
(SCA) para 14 and also see MEC for
Education, KwaZulu-Natal v Shange 2012 (5) SA 313 (SCA).
[3]
Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre
as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) para 20; Rance supra
para 35.
[4]
Madinda supra para 10; Rance supra para 36.
[5]
Van Wyk supra para 22; Rance supra para 35.
[6]
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A); Rance supra
para 36.
[7]
Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA)
para 12.
[8]
Transnet Ltd v Rubenstein
2006 (1) SA 591
(SCA)
para 28; Kham and Others v Electoral Commission and Another
2016 (2)
SA 338
(CC).