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[2018] ZAECBHC 3
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Member of the Executive Council for the Department of Health, Eastern Cape v Jantjies (513/2015) [2018] ZAECBHC 3 (19 June 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE HIGH
COURT LOCAL DIVISION: BHISHO
CASE NO: 513/2015
REPORTABLE: YES/NO
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF HEALTH, EASTERN CAPE
Applicant
and
LEONIE
JANTJIES
Respondent
JUDGMENT
NTLAMA AJ
1
This matter concerns the application for
condonation in respect of the late filing of a discovered document as
envisaged in Rule
28 of the Uniform Rules of the Court. The applicant
seeks to amend her heads and file a document entitled: Service Level
Agreement
(SLA: FA2) which was a contract between her and the second
respondent in the main action: SAWAS Hospital. The latter was a
private
and state aided hospital. The SLA contains an indemnity
clause which absolves the Department of Health (DH): first respondent
in
the main action, from liability that might be incurred as a result
of the injury suffered by the victim whilst in the care of the
second
respondent.
2
The applicant contended that after filing the heads of arguments
which was
solely based on the Transfer Agreement that came into
effect on 1 April 2011, the existence of the SLA: FA2 came to her
attention.
She, therefore, had to try and get it in order to
supplement her heads. The applicant pointed out that after extensive
search for
the document, she finally got her hands on it in the
archives of the SAWAS Hospital. It was then not her intention to
delay the
proceedings but to lay a solid foundation in her argument.
She also alluded to the fact that this was a reasonable and a
satisfactory
explanation for the late filing. She further
demonstrated that she has a
bona fide
defence that forms the
core content of the main cause of action. She will also be prejudiced
should the condonation not be granted.
3
On the other hand, the respondent, who is the applicant in the main
action,
argued that the application should not be granted because the
applicant:
(a)
has failed to provide a satisfactory
explanation on the delay to amend.
(b)
has shown no genuiness in her application.
(c)
showed disregard and recklessness in
compliance with the rules of the court; and
(d)
provided no supporting documents on
intention to amend such as the contract between her and the service
provider (SAWAS Hospital).
4
This application was preceded by another application for condonation
of
the non-compliance by the applicant (respondent in the main
action) with the Case Management Order which was granted on 09 March
2018 by the Case Management Judge. After hearing the submissions from
both Counsels, the Court granted the application.
5
This application is further grounded on the determination whether the
condonation
should be granted if it is established that:
(a)
there is existence of a reasonable
explanation for the delay on the submission of the discovered
document;
(b)
the application is not designed to
frustrate the processes of the claim by the other party; and
(c)
there
is no wilful flouting of the rules of the Court.
[1]
6
It is evident from the above factors, as correctly captured in
Minister
of Safety and Security v Tembo Recovery
[2]
that condonation will be granted after an extensive analysis to
establish whether a good cause is shown for the delay in the
submission
of the document. The undertaking is designed to take into
account the ‘reasons for lateness, importance of the case, the
prejudice to be suffered by the opposing party and whether there are
any prospects of success’.
[3]
At the risk of repeating what has already evolved relating to the
application for condonations, it is my firm view, as endorsed
by
Madlanga J in
Turnbull–Jackson
v Hibiscus Coast Municipality,
[4]
that the latter factors are a determinant of the quality of access to
justice. The determination should involve an assessment of
the
reasonableness of the application within the broader framework of
considering the:
(a)
length of the delay.
(b)
explanation for, or cause of, the delay.
(c)
prospects of success for the party seeking
condonation.
(d)
importance of the issues that the matter
raises.
(e)
prejudice to the other party or parties;
and
(f)
the
effect of the delay on the administration of justice.
[5]
7
It is deduced from these factors, as similarly expressed in
Grobler
v Msimanga
[6]
,
that the ‘condonation for the non-observance of the rules is by
no means a mere formality, there must be an acceptable explanation
for the default.
[7]
The factors
must be read cumulatively and not in isolation of each other. The
interdependence of these factors brings insight the
determination
whether a good cause has been shown for the relief sought. The
determination of the quality of evidence presented
in support of the
application for condonation lies at the ‘door-step’ of
the discretion of the court, which has to
be exercised judicially,
having regard to all the circumstances of the case.
[8]
In essence, the granting of condonation is grounded on the
reasonableness of the proffered explanation which is directly linked
to the establishment whether this entails a justified defence in the
main action.
8
With the principles regulating the granting of applications for
condonations,
in this case, I must express the displeasure with the
conduct of the applicant. The displeasure is related to what I may
term,
‘she is the author of her own misfortune’. I am
appalled by the lack of the proper filing system in the archives of
the DH, particularly of the documents that are the ‘bread and
butter’ of the daily lives of ordinary South Africans.
DH is
constitutionally obliged to provide quality health care to all
without distinction including the preservation of sensitive
documents
that are grounded in her functioning as the executive arm of the
state. It is discomforting that the applicant today,
applies to be
condoned for the late filing of the document which could have been
within her reach if there was a proper management
of the filing
system of her archives. The courts, including this one, functions
within the domain of the clearly defined boundaries
of the doctrine
of separation of powers as envisaged in the 1996 Constitution.
[9]
This conduct therefore, put these courts in an untenable situation of
having to enter into the terrain of the executive function
which in
turn, subjects them to unnecessary criticisms.
9
I must further point out that the explanation in this present
application,
although the document is filed, is far from
satisfactory. The discretion to be exercised by this court cannot be
reduced to logistical
difficulties in the obtaining of the SLA. The
displeasure of this court over non-compliance with the time-frames as
envisaged in
the Rules, which were endorsed by this Court cannot be
relegated to the applicant’s own tardiness.
10
Notwithstanding the unsatisfactory nature of the explanation
presented by the applicant,
the present case raises an important
aspect of the point of law relating to the retrospective application
of liability which the
court has to determine in the main action.
Simply put, the question is whether it is in the interest of justice
to grant the condonation,
considering the
lacuna
to be addressed in the main application?
[10]
Further, despite dissatisfaction, whether the application is lodged
in good faith without any intention to frustrate the claim
by the
respondent, as the applicant in the main action. These questions are
also grounded on the establishment whether the respondent
will suffer
harm or prejudice by the granting of the condonation?
11
It is my view that the prejudice to be suffered by the respondent is
insignificant.
The granting of the application has the potential to
bring certainty, in turn, advance the jurisprudence of the new
constitutional
dispensation in the determination of the liability of
state organs. In essence, it is acknowledged that each case is
determined
according to its own merits, however, this application
presents an opportunity whether a retrospective conduct may be
brought within
the imperatives of the new constitutional
dispensation.
12
Given the concerns raised above on the quality of explanation
provided by the applicant,
balanced against the potential of the
application in settling a point of law, I accordingly:
(a)
grant the application for the late filing
of the discovered document (SLA: FA2).
(b)
No order is made as to costs.
N. NTLAMA
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES
:
APPLICANT
:
Mr
MH Sishuba
The
State Attorney
Defendant’s
Attorneys
Ground
Floor, Old Spoornet Building
17
Fleet Street
East
London
RESPONDENT
:
Advocate
Y Malunga
Gordon
McCune Attorneys
Plaintiff’s
Attorneys
140
Alexandra Road
King
William’s Town
5600
Date
Heard
:
07 June 2018
Date
Delivered
:
19 June 2018
[1]
See
Brink J in
Smith
v Brummer
1954 (3) SA 352
358A.
[2]
[2016]
ZASCA 52.
[3]
Tembo
Recovery
para 7.
[4]
2014
(11) BCLR 1310 (CC).
[5]
Turnbull-Jackson
para 23.
[6]
CASE
NUMBER: 05/29099 (WITWATERSRAND LOCAL DIVISION), para 30.
[7]
Grobler
para 30.
[8]
See
Darries
v Sheriff, Magistrate’s Court, Wynberg
1998 (3) SA 34
(SCA) as the court summarised the legal principles
relating to condonation as follows: ‘Condonation of the
non-observance
of the Rules of this Court is not a mere formality.
An [applicant] should whenever he realises that he has not complied
with
a Rule of Court apply for condonation as soon as possible. Nor
should it simply be assumed that, where non-compliance was due
entirely to the neglect of the appellant’s attorney,
condonation will be granted. In applications of this sort the
applicant’s
prospects of success are in general an important
though not decisive consideration. When application is made for
condonation
it is advisable that the petition should set forth
briefly and succinctly such essential information as may enable the
Court
to assess the appellant’s prospects of success. But
appellant’s prospect of success is but one of the factors
relevant
to the exercise of the Court’s discretion, unless the
cumulative effect of the other relevant factors in the case is such
as to render the application for condonation obviously unworthy of
consideration. Where non-observance of the Rules has been
flagrant
and gross an application for condonation should not be granted,
whatever the prospects of success might be’, 40H-41E
(footnotes omitted).
[9]
The
Constitution of the Republic of South Africa 1996, hereinafter
referred to as ‘Constitution’.
[10]
Unitas
Hospital v Van Wyk
[2006] 4 All SA 231
(SCA) para 47.