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[2018] ZAFSHC 152
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R v MEC for Health, F S (2621/16) [2018] ZAFSHC 152 (11 October 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number:
2621/16
In
the matter between:
R.
M
Plaintiff
and
MEC FOR HEALTH,
F.S
Defendant
CORAM:
CHESIWE, J
JUDGMENT
BY:
CHESIWE, J
HEARD
ON:
11 JULY 2018
DELIVERED
ON:
11 OCTOBER 2018
JUDGEMENT
[1]
The plaintiff instituted an action for medical negligence damages
against the Member of the Executive Council of the Department
of
Health, Free State (the MEC) as envisaged in terms Section 1 of the
Institution of Legal Proceedings Against Certain Organs
of the State
Act 40 of 2002 (the Act ).
[2]
The plaintiff was admitted on the 8
th
November 2014 at the Mofumahadi Manapo Mopeli Regional Hospital. The
plaintiff sustained a gunshot injury to the left arm posteriorly
and
superiorly; injury to the left side of the chest and lodgement of
bullet in right lumbar region. The plaintiff was treated
as follows:
a laparotomy
[1]
was performed for the suspected injuries and an intercostal
drainage
[2]
was
inserted for the haemothorax; removal of the bullet was done under
anaesthetic. As a consequence of these procedures the plaintiff
alleged that he suffered unnecessary pain; a laparotomy scar; lower
pain and discomfort around the area of the laparotomy; pain
in the
area around where the intercostal drain was inserted and the
plaintiff experiences more pain when he moves his body
or when
the weather changes.
[3]
The plaintiff claims medical negligence from the defendant in the
amount of R4 Million for damages he suffered due to treatment
that
was done without prior chest and abdomen x-ray being conducted.
The plaintiff in his particulars of claim against the
defendant
claims that his claim was founded in contract, in that the defendant
was under a legal duty of care to ensure that the
plaintiff whilst
hospitalised received proper medical treatment. The defendant opposed
the action.
[4]
The legal representative of the plaintiff send a letter dated 25 June
2015 via registered post to the legal representative of
the
defendant, which letter was received on 28 July 2015 and acknowledged
on the 31 July 2015.
[3]
[5]
The defendant raised a special plea to the plaintiff’s
particulars of claim that the plaintiff has failed to comply with
the
provision of section 3 of the Act and the plaintiff has failed to
give the defendant proper notice as envisaged in terms the
Act that
notice is to be given within the mentioned six month period as
calculated from the date the plaintiff relied
upon, which is 8
November 2014 and that the plaintiff failed to give brief facts
giving rise to the debt as envisaged in the Act.
The defendant in the
special plea denied that the doctors were negligent.
[6]
The issue that the court has to determine is whether the plaintiff
has complied with section 3 of the Act.
[7]
The defendant called only one witness to the stand Mr Mojalefa
Monyane who is employed as a Legal Administrative Officer for
the
litigation department of the defendant.
[8]
Mr Monyane testified that the plaintiff send a letter to the
defendant dated 25 June 2015, which showed that the cause of action
giving rise to the debt started on 8 November 2014. He stated that
the letter from Booi & Sons Attorneys was received by his
office
on 28 July 2015 and further indicated that the track and trace
numbers do not specify which track number must
go to
which department. Mr Monyane responded with a letter on behalf of the
defendant dated 31 July 2015 advising the plaintiff
that he failed to
comply with relevant provisions of Act 40 of 2002 and that the claim
of the plaintiff was rejected. He explained
that the letter of
instruction from the plaintiff’s attorney showed that the cause
of action arose on 8 November
2014 and that was the date
that he used to calculate whether the claim falls within the six
month period. He said according to
the calculation the claim would
expired on 1 May 2015. Mr Monyane mentioned that the plaintiff did
not respond to the letter, nor
did the plaintiff make an application
to amend its papers. He brought it further to the court’s
attention that paragraph
21 of the particulars of claim worsened the
plaintiff situation as it stated that during February 2016 a letter
of demand was send
and this made the calculation to be way out of the
required six month. Mr Monyane indicated that the plaintiff therefore
failed
to give notice within six months as required by the Act.
Mr Monyane further testified that the defendant will be prejudiced
as
the doctors and nurses who used to be employed by the defendant has
left the employment and that it was difficult to trace them.
[9]
Under cross-examination, Mr Monyane testified that the letter itself
was written six months after the cause of action, and therefore
did
not comply with the Act. It was then put to Mr Monyane that it is not
expected of the plaintiff to have known when the cause
of action
arose, that the plaintiff only knew about the negligence when he
consulted with his legal representative, Mr Booi. That
was the
defendant’s case.
[10]
The plaintiff did not call any witnesses.
[11]
The Counsel on behalf of the defendant, Mr Masihleho in closing
argument submitted that the plaintiff failed to comply with
Section
3(2)(a) of the Act and that based on the information provided
by the plaintiff, the six months expired on 7 May 2015.
Counsel
submitted that it was necessary for the plaintiff to make an
application for condonation as the plaintiff had not complied
with
the required six months set out in the Act. Counsel submitted that
since the plaintiff did not respond to the letter dated
28 July 2015,
the facts of the defendant are thus unchallenged and that court can
only make a determination based on the evidence
before it. Counsel
submitted that even before the plaintiff withdrew his replication,
the replication did not deal with non-compliance,
but rather dealt
with a different issue of prescription. He concluded that the special
plea of the defendant before court is therefore
unopposed in the
absence of replication.
[12]
Counsel for the plaintiff, Mr Kugu in his closing arguments submitted
that the notice was given within the required six months.
The
question is when and how the six months was computed. Counsel
submitted that the defendant should give the date when was the
cause
of action arose as the probable case is that the date given was the
date that the plaintiff was sedated. Counsel further
submitted that
the defendant’s case is not dependent on the plaintiff’s
version and that the defendant failed to proof
when the plaintiff
became aware that he was wronged by the defendant. Counsel for the
plaintiff submitted that in this instance
prescription does not apply
and it was not an issue between the parties as the notice was served
within the appropriate time and
that condonation is not of relevance.
[13]
The onus rest on the defendant to prove the plaintiff's failure
of non-compliance with the provisions of section
3 of Act
which reads as follows:
(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
)
-
1.
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
2.
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.
3.
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.
[14]
In
Madinda
v Minister of Safety and Security
[4]
the
court held that:
“
The phrase 'if
[the court] is satisfied' in s 3(4)
(b)
has
long been recognised 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...”
[5]
The
court held further that:
“
The first
requirement speaks for itself. The court must be satisfied that the
plaintiff relies on an extant course of action. The
second
requirement is procedural and will look at all those factors which
bear on the fairness of granting the relief as between
the parties
and as affecting the proper administration of justice.”
[6]
[15]
With regards to the second and third requirements, the court in
Madinda
further stated
that:
“
Good cause'
usually comprehends the prospects of success on the merits of a case,
for obvious reasons...'Good cause for the delay'
is not simply a
mechanical matter of cause and effect. The court must decide
whether the applicant has produced acceptable
reasons…There
are two main elements at play in s 4(b),
viz
the
subject's right to have the merits of his case tried by a court of
law and the right of an organ of state not to be unduly
prejudiced by delay beyond the statutorily prescribed limit for the
giving of notice. Subparagraph (iii) calls for the court to
be
satisfied as to the latter. Logically, subparagraph (ii) is directed,
at least in part, to whether the subject should be denied
a trial on
the merits. If it were not so, consideration of prospects of success
could be entirely excluded from E the
equation on the
ground that failure to satisfy the court of the existence of good
cause precluded the court from exercising its
discretion to
condone…”
[7]
[16]
The structure of s 3(4) of the Act is such that the court must be
satisfied that all three requirements have been met and once
it is
satisfied, the discretion to condone operates according to the
established principles
[8]
. As
stated by Holmes JA in
United
Plant Hire (Pty) Ltd v Hills and Others
[9]
“
It
is well settled that, in considering applications for condonation,
the Court has discretion, to be exercised judicially upon
a
consideration of all of the facts; and that in essence it is a
question of fairness to both sides. In this enquiry, relevant
considerations may include the degree of non-compliance with the
Rules, the explanation therefore, the prospects of success
on
appeal, the importance of the case, the respondent's interest in the
finality of his judgment, the convenience of the Court,
and the
avoidance of unnecessary delay in the administration of justice. The
list is not exhaustive”
[10]
[17]
In the matter of
Minister
of Safety and Security v De Witt
[11]
it was held that condonation in terms of section 3(4)(b) of the Act
could appropriately be granted even if no notice was given,
or notice
was given after the service of summons provided that the debt had not
prescribed. As in this instance the plaintiff claim
has not
prescribed. The plaintiff’s debt has not prescribed but
according to the calculations by the defendant the
plaintiff has not
complied with the required six month. Counsel for the plaintiff
correctly so, submitted that the
plaintiff was not aware that
he has a negligence claim against the defendant, until he consulted
with his legal representative
and became aware of the claim. The
plaintiff approached the attorney not having any knowledge as to when
a claim arises and how
the cause of action arose.
[18]
The plaintiff acquired information that he was mismanaged negligently
by the medical staff when he first consulted with his
attorney.
Counsel for plaintiff submitted that it’s the plaintiff’s
case that he has complied with the requirements
of Section 3 of the
Act and the onus rests on the defendant to proof otherwise.
Furthermore, there is no evidence in all the facts
submitted by the
defendant to substantiate that the failure to give notice timeously
would unreasonable prejudiced them except
than saying that they are
unaware of the whereabouts of the doctors or the nurse. The defendant
has at its disposal the different
Regulatory bodies of these
professions to trace the medical staffs, which are the South African
Nursing Council and the Health
Professional Council of South Africa.
[19]
The plaintiff in this instance may have been unaware of the
requirements for notice until he approached an attorney, or having
knowledge as to when and how the cause of action arose. It therefore
seems the explanation given by the plaintiff tend to favour
the
plaintiff. It is indeed true that the plaintiff did not seek
application proceedings for condonation as he thought and on legal
advised received his notice was still within the required time.
[20]
The primary purpose of the Act is to require that notice of intention
to institute legal proceedings be given at an early stage,
obviously
to enable it to investigate the basis of the proposed claim.
The legislature by requiring that a notice be given
within six months
of the date on which the debt became due is to safeguard on any
claims that may be filed way out of the
require six months without a
proper explanation by the creditor. There will always be some cases
where the delivery of the notice
is or was late and section 3 (4)
condones the late delivery. The fact of the matter is the
plaintiff send a notice to the
defendant that notifies of his
intention to proceed with legal action. A court may grant condonation
for such failure if
it is satisfied that the debt has not been
extinguished by prescription, that good cause exists for the failure
by the creditor
and that the Organ of State was not unreasonably
prejudiced by that failure.
[21]
Section 3(4)(b) circumscribes a court’s powers to grant
condonation by requiring that it be satisfied that:
(i) the debt has not been
extinguished by prescription;
(ii) good cause exits for
the failure by the creditor to serve the statutory notice according
to section 3(2)(a) or to serve notice
that complies with the
prescription of section 3(2)(b); and
(iii) The organ of state
was not unreasonably prejudiced by the failure.
[22]
The plaintiff is entitled to condonation for the late service on the
defendant of the notice as required by the Act. Without
getting into
the merits of the case it seems to me that the plaintiff’s
prospects of success cannot be ruled out. Thus I
am persuaded that in
the interest of justice, the plaintiff’s circumstances favours
him and he can therefore not be denied
an opportunity to a trial on
the merits of this case. In my view the purpose of condonation is to
forgive non-compliance or faulty
compliance and the court has the
discretion to condone the late filling of the notice on the
defendant.
[23]
Condonation under the Act has nothing to do with non-observance of
court procedure, but is for permission to enforce a right,
which permission may be granted within he prescribed statutory
parameters, and such an application is only necessary if the Organ
of
State relies on the creditor’s failure to serve notice.
[12]
[24]
Therefore, I come to the conclusion that the plaintiff has satisfied
the elements of Section 3, whether it was timeous or not
depend upon
when the plaintiff acquired knowledge of the debt or the facts giving
rise to the debt. The defendant was unable
to proof as to when
the plaintiff acquired the knowledge of the facts that gave rise to
the debt. The plaintiff had to consult
with an attorney and
only then discovered that he was managed negligently by the medical
staff, as a result thereof the plaintiff
would not be aware as to
when did the cause of action arise.
[25]
I am satisfied for purposes of section 3(4)(b)(ii) of the Act that
good cause exists for the plaintiff.
[26]
In the circumstances, though the notice was not given within six
months; the court has the discretion to condone the late service
on
the defendant.
[27]
ORDER
1.
Condonation is granted to the plaintiff’s
failure to serve the notice contemplated in section 3(1)(a) of the
Institution of
Legal Proceedings against Certain organs of State Act
40 of 202 within the period laid down in section 3(2) of the Act.
2.
Costs to be in the cause.
____________________
S.
CHESIWE, J
APPERANCES:
Obo
Plaintiff: Adv. Kugu
Instructed
by: Honey Attorneys
(Booi
and Sons Attorneys)
Queenstown
Obo
Defendant: Adv. MA Mohobo
Instructed
by: State Attorney
Bloemfontein
[1]
A
laparotomy is a procedure involving a large incision into the
abdominal cavity to examine the abdominal organs and aid to diagnose
and management of pathology involving the abdominal organs.
[2]
An intercostal drainage
is
an underwater drain system that allows drainage of air or blood
surrounding the lungs to allow the lungs to take in air to
maximum
capacity.
[3]
See Bundle
of documents for defendant’s special plea, page 1.
[4]
Madinda v Minister of
Safety and Security
2008
(4) SA 312 (SCA)
[5]
Ibid para [8]
[6]
Ibid para [9]
[7]
Ibid para [12]
[8]
United Plant Hire (Pty) Ltd
v Hills
1976 (1) SA 717
(A) at 720E-G)
[9]
Ibid
[10]
Ibid
[11]
Minister of Safety and
Security v De Witt
2009
(1) SA 459
(SCA) para [5], [11] and [13]
[12]
Lakay v
Premier of the Western Cape Provincial Government NO
(1269/2006)
[2009] ZAWCHC 185
(27 November 2009)