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[2018] ZAECMHC 27
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N.M obo K.M v Member of the Executive Council for Dept. of Health, E Cape, Province (2035/2014) [2018] ZAECMHC 27 (24 May 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 2035/2014
N.
M.
obo
Plaintiff
K.
M.
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
DEPT. OF HEALTH, E CAPE, PROVINCE
Defendant
JUDGMENT
BROOKS
J
[1]
The plaintiff is an adult woman who is resident at Z., Mqanduli,
Eastern Cape. On 29 July 2014 she issued a combined summons
against the defendant on the basis that he is nominally liable for
all wrongful acts committed by persons acting in the course
and scope
of their employment by the Eastern Cape Department of Health,
including those employed at Z. Hospital.
[2]
The plaintiff pursues her claim both in her own capacity and in her
capacity as the mother and the natural guardian of her minor
child
K.. It is based upon allegations that employees of the
defendant employed at Z. hospital acted negligently whilst under
a
legal duty of care to render medical services to the plaintiff.
[3]
The cause of action relied upon by the plaintiff arises from the
circumstances pertaining to the plaintiff’s presentation
at Z.
Hospital on 4 August 2010, 5 August 2010, 6 August 2010 and 7 August
2010. The allegations range from a denial of emergency
medical
treatment for the plaintiff who was in labour at the time to a
failure to act timeously in response to prolonged labour
and
concomitant foetal distress.
[4]
It is alleged that during the plaintiff’s unnecessarily
prolonged labour and prior to K.’s delivery by belated
caesarean section, K. suffered an hypoxic ischemic injury to the
brain. The resultant brain damage has caused permanent spastic
cerebral palsy and epilepsy. In her personal capacity the
plaintiff alleges that she suffered from psychological shock and
trauma as a result of the negligence on the part of the defendant’s
employees and the damage which it caused to K.’s
brain,
requiring the plaintiff to seek professional help from a psychiatrist
or psychologist. She seeks an appropriate award
of damages
accordingly. In her representative capacity the plaintiff seeks
an award of damages as compensation for further
medical expenses,
future loss of earnings and general damages.
[5]
In due course, the defendant entered an appearance to defend the
action and filed a plea. Special pleas of prescription
and a
non-compliance with the provisions of section 3 (2) of Act 40 of 2002
were raised. In addition thereto the defendant
denied the
allegations of negligence on the part of his employees and denied
that the plaintiff had suffered any damages.
[6]
On 6 September 2016, more than two years after the issue of summons
the matter came before Alkema J on the civil trial roll.
The
defendant sought a postponement of the trial. It is apparent
from the terms of the order granted by agreement that the
defendant
was not ready for trial. The matter was postponed to 30
November 2016 for trial. The defendant was ordered
to file his
expert reports by no later than 30 September 2016 and also to pay the
wasted costs occasioned by the postponement.
These costs
included the costs of two counsel, the reasonable travelling and
accommodation costs of the plaintiff’s legal
representatives
incurred in attending court and consulting with the plaintiff’s
witnesses and the reservation fees or qualifying
expenses, if any, of
the plaintiff’s expert witnesses.
[7]
The necessity for the defendant to seek a postponement on 6 September
2016 seems rather strange. In a report prepared
by a clinical
psychologist on behalf of the defendant, which is dated 29 March
2018, reference is made amongst the list of documents
perused by the
author to two medico-legal reports furnished by the defendant.
The first is a medico legal report prepared
by Dr Yatish Kara, dated
8 May 2016. The second is a medico legal report prepared by Dr
SA Koranteng, a specialist obstetrician
and gynaecologist, which was
dated 20 June 2016. Presumably both reports were available to
the defendant well before 6 September
2016.
[8]
On 30 November 2016 the matter appeared again on the civil trial
roll. An order was made by Notununu AJ. It was
not made
by agreement between the parties. The terms of thereof are as
follows:
“
1.
The issue relating to liability is separated from the issue relating
to
quantum
;
2.
having regard to the particulars of claim as amended and the medico
legal reports
of Professor Smith, Professor Lotz, Professor van
Toorn, Professor Odendaal, Dr Kara and Dr Koranteng and the joint
minute between
Professor Smith and Dr Kara, the defendant is liable
for all proven damages suffered by the plaintiff in both her personal
and
representative capacities, as mother and natural guardian of the
minor child, K., arising from the negligent treatment of the
plaintiff
and K. at Z. Hospital;
3.
The issue relative to
quantum
is postponed
sine
die
for
later determination by the above honourable court;
4.
The defendant is ordered to pay the plaintiff’s costs of suit
together
with interest thereon at the prevailing prescribed rate from
date of taxation or agreement to date of payment, such costs to
include:
4.1
all reserved costs; if any;
4.2
the costs attended upon the employment of two counsel where such
counsel were employed;
4.3
the travelling and accommodation expenses of the plaintiff’s
legal representatives
incurred in the consultations with witnesses
and in attending court;
4.4
the travelling expenses, reservation and appearance fees, if any,
together with costs of
the preparations of the reports and
consultation and qualifying fees, if any, of the following expert
witnesses:
·
Professor
van Toorn
·
Professor
Lotz
·
Professor
Smith
·
Professor
Odendaal.”
[9]
I am advised by Mr Dugmore who, together with Mr Sambudla, appeared
for the plaintiff, that during March and early April 2017
the
plaintiff was called upon to present herself, together with K., for
medical examinations and assessments for the purposes of
preparing
medico legal reports for the defendant which addressed the
quantum
of her claims. These were held in KwaZulu-Natal and Gauteng.
The inconvenience to the plaintiff, who had to ensure
the safety and
comfort K. whilst travelling far from her rural home in the Eastern
Cape in order to attend these consultations,
must have been
considerable. Be that as it may, the accuracy of the assessment
of the time frame is borne out by the content
of the medico legal
reports which were eventually filed.
[10]
In accordance with the case flow management procedures in place in
this court, the parties were directed to attend a case management
conference before a judge on 19 May 2017. It is apparent from
the minute of that conference that the parties indicated that
they
were both ready for trial. Accordingly, the judge who presided
over the conference certified that the matter was ready
for trial and
directed the registrar to allocate a trial date to the matter.
[11]
On 19 September 2017 the first conference in terms of rule 37 of the
Uniform Rules of Court was convened
inter
partes
in order to address the issue of the
quantum
of the plaintiff’s claims. The minute of that conference
is filed of record. It discloses that the defendant
“is
not in a position to make a settlement proposal at this stage”.
It also states that the defendant “is
not in a position to
admit the following plaintiff’s expert reports at this stage.”
A full list of the plaintiff’s
experts is then given.
What follows is a recordal that “[t]he defendant will revert”.
[12]
minute of the first conference held in accordance with the provisions
of rule 37 of the Uniform Rules of Court also records
that the
plaintiff had been referred to experts “whose reports have not
yet been filed”. What follows is a comprehensive
list of
fifteen experts. It is recorded that a further conference will
be held “if necessary”.
[13]
On 23 January 2018 the plaintiff’s attorney of record served a
notice of set down upon the defendant’s attorney
of record.
This was followed by a notice of set down issued by the registrar and
served upon the parties’ attorneys
of record. In terms
thereof the matter was enrolled for trial on
quantum
on 2 May 2018.
[14]
Notwithstanding the fact that a year had passed since the plaintiff
and K. were assessed by the defendant’s extensive
panel of
experts and the reference to the existence of their reports in the
minute of the conference held in terms of rule 37 of
the Uniform
Rules of Court on 19 September 2017, it is apparent that the
defendant had failed to comply with the time frame prescribed
in the
provisions of rule 36 (9) of the Uniform Rules of Court.
[15]
With the imminent approach of the trial date the plaintiff sought a
further conference in terms of rule 37 of Uniform Rules
of Court. It
was initially scheduled for 23 April 2018 but at the instance of the
defendant it was re-scheduled to 24 April
2018. In a letter
bearing that date the defendant’s attorney was advised by the
plaintiff’s attorney that the
plaintiff’s medical experts
were remaining on stand-by to engage with the defendant’s
experts in order to produce joint
minutes. Again the defendant
failed to attend the pre-trial conference, prompting a letter to be
addressed by the plaintiff’s
attorney in which the obvious
prejudice to the plaintiff is recorded. Importantly, the letter
places on record the fact that
as at 24 April 2018 ten expert reports
had still not been filed. It is apparent from the content of
the letter that a small
number of expert reports had been served and
filed during “the last week before the trial date”.
It must be recorded
that 27 April 2018 and 1 May 2018 were both
public holidays flanking an ordinary weekend. The letter
requested immediate
delivery of the outstanding reports and
rescheduled the conference to the following day, 25 April 2018.
[16]
The agenda furnished by the plaintiff’s attorney for the rule
37 conference on 25 April 2018 recorded in unambiguous
terms the
prejudice caused to the minor child K. by the defendant’s
inattention to the matter. It recorded the prejudice
to the
plaintiff’s legal team caused by the defendant’s
non-compliance with the provisions of rule 36 (9) of the Uniform
Rules of Court and his apparent preference for ambushing the
plaintiff in her attempt to litigate meaningfully and responsibly
by the late and erratic provision of the defendant’s expert
reports. The agenda concludes with an indication that in
the
circumstances the plaintiff’s legal team reserved the right to
object to the production and use of the expert reports
at the trial,
requiring the defendant’s legal representative to satisfy the
court that reference should be had thereto.
[17]
It is evident that on 25 April 2018 a meaningful and fruitful
conference was held in terms of rule 37 of the Uniform Rules
of
Court. Counsel for both the plaintiff and the defendant
attended the conference with their respective instructing attorneys.
The defendant was also assisted by the presence of a costs
consultant, who was permitted by agreement between the parties to
participate
in the deliberations. The minute of the conference
records that after a consideration of applicable case law and legal
principles
and the plaintiff’s claims, the latter should be
settled in a particular manner. It is specifically recorded
that the
settlement is of general damages and is reached “as a
compromise”.
[18]
For present purposes it is important to set out the legal position
relating to compromise. The agreement reached during
the
pre-trial conference was an agreement in which the legal teams for
both parties were engaged. The agreement effectively
settled
the matter and involved “a give and take” between the
parties resolving issues in dispute in the interest of
expedition,
saving inevitable costs and, ultimately, of justice.
[1]
[19]
Consensual agreements reached by parties at a conference held in
terms of the provisions of rule 37 of the Uniform Rules of
Court,
including the more comprehensive consensual agreements, compromises,
fall to be recognised and enforced. The principles
applicable
are those generally applicable to agreements where parties are
represented by an attorney or by counsel. The underlying
principle has been expressed by the Supreme Court of Appeal
[2]
as follows:
“…
A
compromise (or transactio) arrived at between litigants is a
well-established measure. Our courts encourage parties to deal with
their disputes in this way and the rules decree that compromises must
be sought. When concluded such a compromise disposes of the
proceedings…What is more, in this country…the conduct
of a party's case at the trial of an action is in the entire
control
of the party's counsel. Counsel has authority to compromise the
action or any matter in it unless he has received instructions
to the
contrary. In England his apparent authority to compromise cannot be
limited by instructions unknown to the other party…
Counsel's
general authority in South Africa is similar… At
the stages prior to the assumption of control by
counsel the attorney
of record stands in the same position...”
[20]
In George v Fairmead (Pty) Ltd
[3]
it was held that the proper approach is to take into account the fact
that there is another party involved. As Fagan CJ
[4]
said:
“
They
[that is our Courts] have, in effect said: Has the first party - the
one who is trying to resile - been to blame in the sense
that by his
conduct he has led the other party, as a reasonable man to believe he
was binding himself.”
[21]
Moreover, a legal practitioner has ostensible authority to
compromise
[5]
.
[22]
In Dlamini v Minister of Law and Order and Another
[6]
Friedman J provided a useful historical analysis of the applicable
principles:
“
The
settlement, which was arrived at, was arrived at by counsel and
attorneys purporting to act on behalf of the respondents. It
would
seem to be reasonably clear that counsel, who had been properly
instructed to appear on behalf of a litigant, has implied
authority
to conclude a settlement or compromise of the litigation on behalf of
his client, provided he acts bona fide in the interests
of his
client. This proposition appears to be well entrenched in England.
Perhaps the earliest leading case on the subject is the
decision of
the Court of Appeal in the case of Matthews and Another v Munster
(1887) 20 QB 141
(CA) ((1886-90) All ER Rep 251). In that case
counsel, acting on behalf of the plaintiffs, had settled an action
for malicious
prosecution on behalf of his clients with counsel for
the defendant. The defendant had not been present when the settlement
was
arrived at and, on coming to Court later, endeavoured to
repudiate the settlement. It was held, however, that although the
defendant
was not present when the settlement was made he had not put
an end to the relationship of advocate and client which existed
between
himself and his counsel, that his counsel had complete
authority in the case and that he, the defendant, was bound by the
settlement.
The
judgment of Lord ESHER commences by discussing in general terms the
authority of counsel to conduct a case in Court and of counsel's
authority while so conducting a case to exercise power over all
matters, not only directly relevant to the proceedings but also
collateral to it. He concludes by saying:
‘
One
of the things that must properly belong to the management and conduct
of the trial must be the assenting to a verdict for a
particular
amount and upon particular terms. In the present case the amount was
350 and the terms were that all imputations should
be withdrawn. It
is impossible to say that such an arrangement must be an unreasonable
one. Counsel may see that if the case goes
to the jury a verdict for
a very large amount will be given. If the client is in Court and says
'I will not agree to those terms',
his counsel ought to say 'Then I
will no longer act for you any longer' and ought to leave him to
conduct his own case. If the
client allows the negotiation to go on
and makes no audible objection the settlements will be binding upon
him because he has not
withdrawn the authority of his counsel and
made that withdrawal known to the other side. But I wish to
repeat that, although
the authority of counsel is unlimited until it
is withdrawn, the Court retains control over his proceedings. In the
present case
the client was not present in the Court at the time the
settlement was come to and therefore could not have put and did not
put
an end to the relationship of advocate and client which existed
between himself and his counsel, but he comes now and says 'I do
not
like what my counsel has done for me and I ask the Court to set it
aside.' There is no symptom of any injustice having been
done,
counsel exercised his judgment to the best of his ability in the
matter, and I have no doubt did what was really best for
his client.’
The
judgments of BOWEN LJ and FRY LJ were to similar effect. Matthews'
case appears to have been consistently followed. Certain
exceptions,
if I might call them that, to the general rule thus enunciated have
emerged in later cases, but these so-called exceptions
are no more
nor less than the application of general principles of contract.
Where, for example, counsel has express instructions
not to effect a
settlement, he cannot do so in defiance of such express instructions,
since - and this is common to all forms of
contract - any implied
terms must always give way to express terms to the
contrary.
The
decision in Matthews' case appears to have been followed in our
Courts in the early case of Mfaswe v Miller
(1901) 18 SC 172.
Although the judgment in Matthews' case is not referred to in the
judgment of BUCHANAN ACJ, it was quoted in argument and the relevant
principles as stated by BUCHANAN ACJ appear to have been more or less
a repetition of what was said in Matthews' case. Similarly,
in the
case of Klopper v Van Rensburg
1920 EDL 239
, Matthews' case was cited
with approval, and a litigant in that case was held to be bound by a
compromise effected by his counsel
at a time when he was not present.
At 239 GANE AJ, after referring to the English rule and to Matthews'
case, said:
‘
Though
I know of no case in which this has been definitely held in South
African law, the trend of our practice in the State as
given to an
advocate in Roman Dutch law justify me in taking the position of an
advocate in this respect to be as good as that
of an English
barrister. The offer plainly made on 12 March was accepted on 16th,
when a security nothing less than gilt-edge was
offered. I consider
that such offer and acceptance bind the applicant who, to the present
moment, has not objected to the security
as such and has not
suggested any better way of dealing with the rather difficult
position than C that adopted by the
respondent.’
In
the case of R v Matonsi
1958 (2) SA 450
(A) the Appellate Division
had occasion to deal with a somewhat related situation, namely a
decision by counsel not to call an
accused in a criminal case. Whilst
that position may be and probably is distinguishable from the
present one, what is important
is that in Matonsi's case Matthews'
case, as well as the earlier English case of Swinfen v Lord
Chelmsford (1860) 29 LJ (Ex) 382
upon which Matthews' case relied,
was cited with apparent approval. In addition, and at 456, SCHREINER
CJ agreed with the view
expressed by GANE AJ in Klopper's case to the
effect that there is no distinction between the position occupied by
an advocate
in the Roman Dutch legal system to that occupied by a
barrister in the English legal system.
…
..
In
the circumstances it seems to me to follow that, the matter having
been settled, the respondents have not demonstrated any basis
for
either repudiating or resiling from that settlement.”
[23]
In MEC for Economic Affairs, Environment and Tourism, Eastern Cape v
Kruizenga and Another
[7]
the Supreme Court of Appeal authoritatively stated the position as
follows:
“
[6]
It is important to reiterate what was said at the outset - the issue
in this matter is whether the appellant
may resile from agreements
made by his attorney, without his knowledge, at a rule 37 conference.
The judgment does not deal with
agreements reached outside of the
context of conducting a trial in the normal course of events. The
rule was introduced to shorten
the length of trials, to facilitate
settlements between the parties, narrow the issues and to curb
costs. One of the methods
the parties use to achieve these
objectives is to make admissions concerning the number of issues
which the pleadings raise. Admissions
of fact made at a rule 37
conference, constitute sufficient proof of those facts. The minutes
of a pre-trial conference may be
signed either by a party or his or
her representative. Rule 37 is thus of critical importance
in the litigation process.
This is why this court has held that in
the absence of any special circumstances a party is not entitled to
resile from an agreement
deliberately reached at a rule 37
conference. And when, as in this case, the agreements are confirmed
by counsel in open court,
and are then made a judgment or order of a
court, the principle applies with even more force.
[7]
It is settled law that a client's instruction to an attorney to sue
or to defend a claim does not generally
include the authority to
settle or compromise a claim or defence without the client's
approval. The rule has been applied to a
judgment consented to by an
attorney without his client's authority and also when the attorney
did so in the mistaken belief that
his client had authorised him to
do so. This principle accords with the rule in the law of agency that
where an agent exceeds the
express or implied authority in
transacting, the principal is not bound by the transaction.
[8]
But there appears to be some uncertainty in the way this principle
has been applied. Midgley observes
that our courts, under the
influence of English law, have distinguished between settlements made
outside of and those made during
the course of litigation - and
appear to have accepted that the power to settle a claim is one
of the usual and customary
powers afforded a legal representative in
the latter instance. So, in Mfaswe v Miller, an attorney's
clerk compromised a
claim on the day of the trial before the client
had arrived at court. He did so fearing that if the client did not
arrive in good
time, default judgment may be given against him.
Thereafter the client sued his attorney for the full amount of the
original claim.
The court said that the clerk had accepted the
compromise 'in the exercise of the discretion vested in an attorney'.
And because
he had acted in good faith, and was not negligent, the
court held that the attorney was not liable to the client in
damages.
Alexander v Klitzke provides an interesting example of
an attorney's general authority. The defendant had alleged that his
attorney's
general authority did not empower him to accept the
plaintiff's tender of settlement, but the court disagreed, saying:
‘
The
authority of a power of attorney which is filed by the client, to
carry his case to final end and determination, does include
authority
to make a bona fide compromise in the interests of his client, and at
any rate, if a client wishes to repudiate such
a compromise made on
his behalf, then I certainly think that the repudiation should be a
timeous one.'
In
Klopper v Van Rensburg, in an ex parte application for a temporary
interdict to restrain the sale of usufructuary property, and
in
answer to a question from the court, counsel stated that if security
were given by the respondent for the value of the property
sold, that
would meet the case. When the respondent thereafter tendered
security, and the applicant rejected it, contending that
counsel had
no authority to agree to a tender of security, the court held that he
was bound by his counsel's offer, as the latter
'was only doing his
plain duty (to) his client. He was making an offer in his client's
best interests, and an offer which he had
every right to
make.'
[9]
However, recently, in Hawkes v Hawkes and Another the court seemed to
adopt a different approach by
placing emphasis on whether the
agreement concluded was in the client's best interests, rather than
on the discretion exercised
by the client's legal representative. It
held that where an advocate gave an undertaking to the court on
behalf of his client without
having a mandate to that effect, in the
attorney's absence and contrary to his client's best interests, and
also in conflict with
his mandate to oppose an interdict sought
against his client, the client was not bound thereby. This approach
resonates with the
view adopted in Bikitsha v Eastern Cape
Development Board and Another, where an attorney, before summons had
been issued, without
having his client's consent, advised his
opponent that his client was prepared to waive the 'prescriptive
period'. In holding the
client not bound by his attorney's waiver,
the court noted that 'for acts of great prejudice an attorney needs a
special mandate'
and '(a) general mandate does not authorise an
attorney to act in a manner adverse to his client's interests'.
[10]
…
[11]
To summarise, it would appear that our courts have dealt with
questions relating to the actual authority of an
attorney to transact
on a client's behalf in the following manner: attorneys generally do
not have implied authority to settle
or compromise a claim without
the consent of the client. However, the instruction to an attorney to
sue or defend a claim may include
the implied authority to do so,
provided the attorney acts in good faith. And the courts have said
that they will set aside a settlement
or compromise that does not
have the client's authority where, objectively viewed, it appears
that the agreement is unjust and
not in the client's best interests.
…
.
[15]
….
[16]
It is well established that to hold a principal liable on the basis
of the agent's apparent authority, the representation
must be rooted
in the words or conduct of the principal, and not merely that of his
agent. Conduct may be express or inferred from
the 'particular
capacity in which the agent has been employed by the principal and
from the usual and customary powers that are
found to pertain to such
an agent as belonging to a particular category of agents'. It may
also be inferred from the 'aura of authority'
associated with a
position which a person occupies, at the principal's instance, within
an institution.
[17]
Properly understood, the representation from the principal in this
case relates only to the appointment of the
State attorney to defend
the claim and to instruct counsel in this regard. The further conduct
relied on is not that of the principal,
but of the agent himself, and
cannot in and of itself bind the principal. The respondents' true
case is that by appointing the
State attorney to defend the claim,
the appellant represented to them, and they reasonably believed, that
the State attorney had
the usual and customary powers associated with
the appointment. These included instructing counsel to defend the
claim, to draft
the plea and to attend all pre-trial procedures,
including rule 37 conferences. In other words the appellant
represented to the
respondents and the outside world that the State
attorney had the authority not only to conduct the trial, but also to
make concessions
at the conferences and to conclude the settlement
agreement from which he now wishes to resile.
…
.
[20]
I accept that in this matter, by agreeing to the settlement, the
State attorney not only exceeded his actual authority,
but did so
against the express instructions of his principal. As opprobrious as
this conduct was, I cannot see how this has any
bearing on the
respondents' estoppel defence. The proper approach is to consider
whether the conduct of the party who is trying
to resile from the
agreement has led the other party to reasonably believe that he was
binding himself. Viewed in this way it matters
not whether the
attorney acting for the principal exceeds his actual authority, or
does so against his client's express instructions.
The consequence
for the other party, who is unaware of any limitation of authority,
and has no reasonable basis to question the
attorney's authority, is
the same. That party is entitled to assume, as the respondents did,
that the attorney who is attending
the conference clothed with
an 'aura of authority' has the necessary authority to do what
attorneys usually do at a rule
37 conference - they make admissions,
concessions and often agree on compromises and settlements. In the
respondents' eyes the
State attorney quite clearly had apparent
authority.
[21]
Mr Buchanan submitted further that to allow the estoppel defence
where an attorney exceeds his or her authority
could lead to grave
injustices and that for policy reasons the estoppel defence should
not be allowed in these circumstances. There
are two answers to this
submission. First, Plewman JA specifically recognised the competence
of the defence in the passage quoted
above in Hlobo, albeit in an
obiter dictum. And this court will not lightly depart from a view it
has previously expressed, even
if only obiter. Secondly, because
estoppel is a rule of justice and equity, it is open to a court to
disallow the defence on this
ground. It was not suggested that it
would be either unjust or inequitable to allow the defence in the
circumstances of this case.
Indeed, the contrary is true. The
prejudice to the respondents if the defence is not upheld is evident
- even with the appellant's
tender to pay the respondents' wasted
costs. The respondents and their counsel prepared for trial on the
basis of the concessions
and on the issues which remained in dispute
- not on the merits or on the heads of damages which were agreed
upon. Moreover, the
appellant has after all this time not even
established a defence. To allow the appellant to resile from these
agreements, made
over a period spanning 18 months, would defeat the
purpose of rule 37, which encourages settlements, and severely hamper
the conduct
of civil trials. It would mean practically that attorneys
can no longer assume that their colleagues are authorised to make
important
decisions in the course of litigation without the
principal's independent confirmation. This cannot be countenanced.”
[24]
In my view, upon an application of the legal principles set out
extensively in the preceding paragraphs, it is clear that the
issue
of general damages was settled at the conference held in accordance
with the provisions of rule 37 of the Uniform Rules of
Court on 25
April 2018.
[25]
At that conference and in respect of the remaining heads of damages,
future loss of earnings and future medical and related
expenses the
parties’ legal representatives were pragmatic in their
approach. They chose to be guided by the terms
of a settlement
negotiated very recently in a matter which they considered to be
comparable. In adopting this approach, the
plaintiff’s
legal team indeed were compromising her claims.
[26]
The defendant’s legal team undertook to revert to the
plaintiff’s legal team by twelve noon on the following day,
26
April 2018, in respect of an overall settlement of the matter.
[27]
Before the conference was adjourned the plaintiff’s legal team
recorded that the plaintiff would not countenance any
further delays
in the finalisation of the matter and, should the defendant seek a
postponement of the trial, this should be done
by way of a
substantive application on notice, thereby enabling the plaintiff to
oppose the application for a postponement on 2
May 2018.
[28]
It is common cause between the parties that on 26 April 2018 Mr
Ngadlela, who appeared on behalf of the defendant, sent a memorandum
to the defendant as undertaken at the conference held the previous
day. A copy thereof was handed in by agreement between
the
parties when this matter eventually proceeded. Mr Ngadlela
informed the court that the defendant had acknowledged receipt
of the
memorandum.
[29]
Notwithstanding the reservation of rights expressed on behalf of the
plaintiff on 25 April 2018, it is apparent from the record
that on 2
May 2018 the matter was postponed by the Judge President to 11 May
2018 “for settlement purposes”.
The defendant was
ordered to pay specified wasted costs. The order was issued by
agreement between the parties and in the
absence of a substantive
application for postponement being presented on behalf of the
defendant. I was informed by Mr Dugmore
that the plaintiff had
little option but to agree to a postponement because, given the
nature and extent of the agreements reached
on the 26 April 2018, the
plaintiff had expected that the matter would be settled in its
entirety on 2 May 2018 and, in order to
minimise the costs payable
ultimately by the defendant, the plaintiff had not brought her expert
witnesses to court.
[30]
On 11 May 2018 the matter was again before court for the purposes of
settlement. For the same reasons as before, the
plaintiff’s
medical experts were not in attendance. There had still been no
substantive response to the memorandum
sent by Mr Ngadlela to the
defendant on 26 April 2018. Having heard argument, Jolwana J
issued an order in the following
terms:
“
1.
The matter is hereby postponed to 16 May 2018, at the instance of the
defendant, to further
enable the defendant’s legal
representatives to obtain instructions to settle the
quantum
of the plaintiff’s damages in accordance with the advices made
and recommendations made by the legal representatives on 26
April
2018;
2.
A rule nisi is hereby issued calling upon the Director General of the
Department
of Health, Eastern Cape, to show cause, if any, returnable
on the 16 May 2018, why an order contemplated in the pre-trial minute
dated 25 April 2018, a copy of which is attached hereto as annexure
“A”, and the draft order premised thereon and attached
hereto as annexure “B”, should not be made an order of
court;
3.
The defendant shall pay the costs of and relating to 11 May 2018,
including the
wasted costs occasioned by the postponement on an
attorney and client scale and such costs to include the costs
consequent upon
the employment of two counsel.”
[31]
On 16 May 2018 the matter came before this court. Mr Dugmore
handed in a copy of a letter which had been received by
his
instructing attorney after close of business on the previous day.
It was written by the attorney who was responsible
for the conduct of
the matter as an employee in the Office of the State Attorney,
Mthatha, the defendant’s attorney of record.
The relevant
portion thereof reads as follows:
“
As
you will appreciate, the matter was postponed to tomorrow the 16
th
day of May 2018, for Superintendent General for the Department of
Health to come and testify why instructions cannot be furnished.
We
have been in constant contact with the department regarding same.
We have been advised that, the Superintendent General
has not been
able to consider the matter and he is out of office for some of the
Departmental duties. Once again, we have
been requested to
request for another indulgence to enable him to furnish us with
proper instructions regarding the finalization
of the matter.
Furthermore,
we have been requested to apologize on behalf of the Superintendent
General who will not be able to attend court tomorrow
as he is out of
the office and that the order came to client’s attention on
Friday 11
th
May 2018, when there have been pre-arranged
office duties from his department. In doing so, he is in no way
trying to ignore
the court order is not anyway trying to be
contemptuous of the court order dated 11
th
May 2018.
In
view of the above we request your client to give us further
indulgence of three weeks to get proper instructions from
client.
”
(sic)
[32]
Although the claim is made on behalf of the Superintendent General
that he is not trying to ignore the court order or to be
contemptuous
of the court order issued on 11 May 2018, it is difficult to avoid
coming to the conclusion that this is precisely
the attitude adopted
thereto. There was no formal response from the Superintendent
General, either by the way of affidavit
or letter, addressing the
issue embodied in the
rule
nisi
.
Nor was the fact that the Superintendent General elected to
prioritise his “pre-arranged office duties” over
an order
of this court better explained. Moreover, absolutely no attempt
was made to communicate anything about the defendant’s
response
to the memorandum sent to him on 26 April 2018 and the reasons for
his failure to communicate thereafter with his legal
team.
Considerations of formality aside, the court regards the defendant’s
apparent disinterest in this matter in a
most serious light.
[33]
Mr Ngadlela confirmed the correctness of Mr Dugmore’s address
on the sequence of events that led to this matter being
in court on
16 May 2018. He also stated that since 25 April 2018 he had
done everything possible to cement the agreement
reached at the
pre-trial conference. In this he had received no cooperation
from the defendant. Indeed, he was obliged
to appear in court
without an instructing attorney as the member of staff of the Office
of the State Attorney who was responsible
for handling the matter had
not presented himself at court and could not be contacted either on
his office telephone or on his
private mobile phone, which had been
switched off. This is a lamentable abandonment of duty on the
part of an officer of
the court who is on record as an attorney in a
matter proceeding in court. No matter how great the
embarrassment caused by
his client’s attitude to the matter
might be, this is not an acceptable excuse for a failure to appear in
court.
[34]
Completely abandoned by his instructing attorney and his client and
unarmed without a substantive application for postponement,
Mr
Ngadlela could only concede that indeed the Superintendent General
had failed to show cause why an order contemplated in the
pre-trial
minute of 25 April 2018 and expressed in the draft order should not
be granted.
[35]
It is important to endorse the manner in which Mr Ngadlela approached
this matter. It apparent from the documentation
filed of
record, including the orders made hitherto, that Mr Ngadlela has
discharged his duties as the defendant’s counsel
with diligence
and efficiency. The integrity displayed in his transparent
handling of the challenges he has faced surrounding
and since the
April pre-trial conference in this matter is commendable. The
unwavering correctness of the manner in which
he has discharged his
duties as an officer of this court places him above reproach.
[36]
Regrettably, the manner in which the defendant has conducted his
defence in this matter calls for comment of a different kind.
It is a matter for great concern that the highly unsatisfactory
manner in which the defendant has conducted this litigation is
not
unique to this matter. Indeed, it is the over-riding
characteristic demonstrated in at least two other matters of a
similar nature which appeared on the civil trial roll of this court
this week. An extract from a previous judgment delivered
by
this court in another similar matter
[8]
addresses the issue as follows:
“
In
setting out the lengthy history of the litigation between the parties
the court has not consistently made observations of direct
censure in
relation to the reasons why the matter could not proceed in a more
efficient, professional and expeditious manner. It
is sufficient to
state at this point that in my view the full history of the
litigation indeed reveals a single thread which is
deserving of
censure. The defendant litigates with public funds and must do so
responsibly and honourably.
[9]
At every point the defendant has demonstrated sloth and apparent
disinterest in this matter. So marked and costly has this
supine
attitude towards the plaintiff’s case been at times that it is
difficult to avoid a conclusion that the defendant’s
conduct of
the litigation from the outset, has been indubitably vexatious and
reprehensible. Particularly given the tragic circumstances
in which
the plaintiff and her minor child now find themselves and seek
legitimately to relieve to some measure by adequate redress
and
compensation, such conduct on the part of the defendant is
reprehensible. It has had a pronounced effect of inhibition on the
plaintiff’s constitutional rights of access to justice. There
is no doubt that apart from the unnecessary additional psychological
burden upon the plaintiff caused by all the obstacles placed upon the
path of her litigation, including that of delay, she stands
to be
burdened financially by increased and unnecessary attorney and client
costs. No valid reason exists why she should be so
burdened.
”
Alarmingly,
there appears to be an emergence of something of a trend on the part
of the defendant to content himself with the conduct
of this sort of
litigation in an indifferent, inefficient and expensive manner.
[37]
The following statements by Bertelsmann J in a similar matter
[10]
are appropriate to the circumstances in this matter:
“
The
defendant is an organ of state. The sole purpose of its
existence is service to the public by providing health care (and
possibly also education). Such healthcare should normally be
rendered in an efficient manner unless the state’s resources
do
not permit such service:
Soobramoney
v Minister of Health, KwaZulu-Natal
1988 (1) SA 765
(CC)
(1977 (12)
BCLR 1696
;
[1997] ZACC 17)
paras 11, 31 and 36.
There is no suggestion in the pleadings or the evidence that the
defendant did not have the resources available to render
effective
healthcare that would seem to have been nothing more than routine.”
and
“
As
far as the costs of the action are concerned, the plaintiff and her
child were left in the lurch by an organ of state.
They were
treated without empathy and without compassion. In this court
the defendant decided to play a role that was essentially
obstructive… Under the circumstances it would be
iniquitous to expect the plaintiff to bear any portion of her own
costs. As a mark of its disapproval of the defendant’s
approach to the matter the court will therefore award the plaintiff
attorney and client costs.
”
[38]
The circumstances of this matter demonstrate unequivocally a gross
infringement of two basic human rights entrenched in the
Constitution.
[11]
The
first is the denial of access to adequate and effective healthcare
experienced by the plaintiff at Z. Hospital in Mqanduli.
The
cause of the infringement was negligence and inefficiency on the part
of the employees of the defendant over whom he had somewhat
remote
control but for which he is responsible in the discharge of his
constitutional mandate. The result of the infringement
was an
unnecessary injury to an unborn child with devastating, permanent
consequences. The second infringement is the denial
of access
to justice which characterises the defendant’s conduct of this
matter. The cause of this infringement lies
much closer to
home. Both infringements amount to a serious dereliction by the
defendant of his constitutional duties.
[39]
The defendant has shown no cause why an order should not be made in
accordance with the draft order transmitted to him under
cover of the
order of this court issued on 11 May 2018. The content of the
draft order sets out compensation for the plaintiff
which is
appropriate, fair and reasonable.
[40]
The following order will issue:
1.
The
defendant is ordered to pay to the plaintiff in her representative
capacity on behalf of K. the sum of R16 915 093.78 as and
for damages
within 30 calendar days of the date of this order.
2.
In
addition to paragraph 1 above, the Defendant shall pay the Plaintiff,
in her representative capacity as mother and natural guardian
of K.
M., the sum of R1 268 632.03 being 7.5% of the amount awarded to the
Plaintiff, in terms of paragraph 1 above, for the costs
occasioned
for the establishment, registration, administration and management of
the Trust to be established for the benefit of
K. in terms of
paragraphs 6 and 7 below, together with interest thereon at the legal
rate from 30 calendar days of the date of
this order;
3.
The
defendant is ordered to make payment to the plaintiff in her personal
capacity the sum of R375 000.00 as and for damages within
30 calendar
days of the date of this order.
4.
In
the event of the defendant defaulting in respect of any payment as
aforesaid the defendant is ordered to pay interest on the
outstanding
sum at the legal rate from 30 days of this order to the date of
payment.
5.
The
defendant is ordered to pay the costs of suit in respect of both
merits and quantum, such costs to include the costs of two
counsel,
such costs to be on the scale as between attorney and client in
respect of all attendances and appearances subsequent
to 11 May 2018
and such costs to include:
5.1
The costs of travelling and subsistence of plaintiff and his legal
representatives for purposes
of consultations with plaintiff’s
experts, rule 37 conferences and trial at full legal rate;
5.2
The costs of all rule 37 conference proceedings, including the costs
of counsel in respect
of the attendance at full legal rate thereof,
where applicable;
5.3
The costs of report, supplementary report, completion of joint
minutes, qualifying expenses
(if any) and day reservation fees (if
any) in respect of all of plaintiff’s experts in respect of
whom rule 36 (9)(a) and
(b) notices were filed, including the
following experts:
5.3.1
Ms Grace Hughes;
5.3.2
Ms Sue Anderson;
5.3.3
Ms Lizanne Strydom;
5.3.4
Ms Mandy Read;
5.3.5
Dr V Amaidas;
5.3.6
Dr. Leon Rajah;
5.3.7
Dr. Gagik Hakopian;
5.3.8
Ms Elmarie Van Der Merwe;
5.3.9
Ms Tabisa Caga;
5.3.10
Mr Zola Macingwana
5.3.11
Ms Barbara Donaldson;
5.3.12
Prof R Solomons;
5.3.13
Independent Actuaries; and
5.3.14
Ms Nontsikelelo Masilo
5.4
The costs of travelling and subsistence in respect of plaintiff’s
expert witnesses
for purposes of trial, if any;
5.5
Interest on costs at the legal rate from date of allocatur to date of
payment
6.
The
attorneys of record are ordered to establish a Trust for the benefit
of K. M. within 6 months of the date of this order, and
to be named
the “K. M. Trust”, the proceeds of this action to be held
in Trust pending such establishment and the nett
proceeds of the
action after the deduction of taxed attorney own client costs are to
be deposited to the credit of such Trust.
7.
The
terms of such Trust are to include:
7.1
The
proposed trustees shall be a chartered accountant, attorney and the
plaintiff to be appointed by the Master or failing which,
by this
Court and shall provide written consent to act in the Trust as
trustee.
7.2
If
the proposed trustees are unable or unwilling to accept appointment
or for any reason becomes unable to continue to act once
having been
appointed, then the Master of the High Court will in his sole
discretion be entitled to appoint another trustees.
7.3
The
trustees are not required to furnish security for the administration
of the assets of the Trust and shall provide adequate Professional
Indemnity insurance cover in terms of paragraph 7.14 of this order.
7.4
The
trustees shall administer the Trust subject to the powers and terms,
which follow.
7.5
The
trustees must in writing accept his / her / their appointment as such
and the benefits and duties conveyed by the trust deed,
and
acknowledge receipt of the donation in terms of which the Trust will
be established.
7.6
The
trustees may at any time in writing appoint additional trustees, or
one or more trustees to succeed any or all of them, or one
or more
agents with powers of substitution and delegation, to perform any
acts on their behalf. If ever there is no trustee,
the person
who keeps the books of the Trust or any beneficiary may call a
meeting of the beneficiaries, assisted by their guardians
if
applicable, which meeting shall appoint a trustee or trustees,
failing which the Master will appoint a trustee.
7.7
A
trustee shall cease to act as such if he / she / they resign, or
becomes mentally disturbed or ill, or alcoholic, or incompetent
or
unable to act as trustee, or being a body corporate, it is
liquidated. If any trustee ceases to act, the remaining
trustee/s
shall continue to act and shall have full powers in terms
thereof.
7.8
In
administering the trust, the trustees shall follow such procedure as
they deem fit. Proper books of account shall be kept.
The
trustees may appoint an auditor for the Trust, but are not obliged to
do so. The proposed primary representative of trustees
shall
have the sole signing powers on all banking accounts and shall have
the power to vito any decision. Nevertheless, he
shall consult
with the other trustees, if any, as to any distributions.
7.9
Any
trustee who is a professional person shall be entitled to perform
professional work for the Trust to charge reasonable professional
fees for such services over and above the fees allowable to the
trustee as set out in the
Administration of Estates Act, no. 66 of
1965
. The Master of the High Court is entitled to call for
taxation of any fees so charged.
7.10
The
trustee / s have the power to perform in the name of the Trust or in
their own name on behalf of the Trust, any acts and enter
into any
contracts and undertake any obligations, whether commercial or
otherwise, which may be done by a natural person
of full
legal capacity, which powers include but are not limited to
the following:
7.10.1
To
purchase or acquire in any way stock-in-trade, plant, machinery,
land, buildings, agencies, shares, debentures and every other
kind of
description of movable and immoveable property;
7.10.2
To
manage, insure, sell, lease, mortgage, dispose of, give and exchange,
work, develop, build on, improve, turn to account of in
any way
otherwise deal with its undertaking or all or any part of its
property and assets;
7.10.3
To
apply for, purchase or buy any other means acquire, protect, prolong
and renew any patents, patent rights, licenses, trademarks,
concessions or other rights and to deal with and alienate them;
7.10.4
To
borrow money;
7.10.5
To
secure the payment of monies borrowed in any manner including the
mortgaging, seeding and / or pledging of property;
7.10.6
To
lend money to any person or company;
7.10.7
To
invest money in any manner;
7.10.8
To
open and operate banking accounts and to overdraw such accounts;
7.10.9
To
make, draw, issue, execute, accept, endorse and discount promissory
notes, bills of exchange and any other kind of negotiable
or
transferable instruments;
7.10.10
To
enter into indemnities, guarantees and suretyship and to secure
payment thereunder in any way;
7.10.11
To
form and have an interest in any company or companies for the purpose
of acquiring the undertaking or all or any of the assets
or
liabilities of the company or for any other purpose which may seem,
directly or indirectly, calculated to benefit the Trust,
and to
transfer to any such Trust or company the undertaking or all or any
of the assets or liabilities of the Trust;
7.10.12
To
take part in the management, supervision and control of the business
or operations of any other company or business and to enter
into
partnerships;
7.10.13
To
make donations;
7.10.14
To
undertake and execute any Trust;
7.10.15
To
act as principals, agents, contractors or trustees;
7.10.16
To
pay gratuities and pensions and establish pension schemes,
profit-sharing and plans and other incentive schemes; and
7.10.17
To
enter into contracts anywhere in the world and to execute any
contracts, deeds and documents in any foreign country.
7.11
The
trustees may determine their own procedure, and in the
absence of unanimity in the event that there is more
than one
trustee, the decision of the majority shall be binding.
7.12
The
assets of the Trust may be held in the name of the Trust.
7.13
The
trustees have an absolute and unlimited discretion in all
matters relating to the Trust but they may not act contrary
to this
order and the trust deed to be drafted in accordance herewith.
7.14
The
primary representative of trustees and his successor or successors
shall be required to provide adequate professional indemnity
insurance cover, proof of which must be furnished to the Master of
the High Court annually on the anniversary of the signature
hereof
and on condition NFB is a member of the
Fiduciary Institute of South Africa.
7.15
The
trustees shall not be personally liable to the beneficiaries for any
trust losses, except caused by gross negligence or deliberate
wrong.
7.16
The
trustees shall under no circumstances be personally liable to
creditors of the Trust.
7.17
The
beneficiaries, who for income and capital, are K. Mvumbi and any of
their biological or legally adopted children for
whom they
would be responsible for in law to maintain in support.
7.18
No
asset, capital or income of the Trust will vest in any beneficiary
until such is actually paid over, handed over or delivered
by the
trustee to the beneficiary. No capital or income benefit to
which any beneficiary is or may become entitled by virtue
of this
Trust deed shall, prior to actual payment or transfer thereof by the
trustee to the beneficiary, be capable of being ceded,
assigned or
pledged, or transferred in any way, or be capable of attachment by
any creditor or trustee of a beneficiary upon insolvency,
unless the
trustees consent thereto in writing.
7.19
Any
asset or money which a beneficiary receives pursuant to this trust
deed shall not form part of any joint estate and shall not
be subject
to any marital power.
7.20
The
primary representative of trustees shall be obliged to call for a
full and proper accounting in respect of all monies paid by
the
defendant to the plaintiff on behalf of the beneficiary whether by
way of capital, interest or cost and will have the power,
in the
name of the plaintiff to demand taxation of any bill of costs or to
make any demand or to institute any action
for the payment of what is
determined to be lawfully due to the Trust subject to paragraph 6
above.
7.21
The
trust deed can only be amended in writing with the leave of this
Court.
7.22
The
Trust will terminate on the death of the beneficiary referred to in
paragraph 6 above and the nett assets of the Trust after
the
discharge of all liabilities are to form part of and to be paid to
the estate of such beneficiary.
8
The
plaintiff’s attorney is ordered to serve a copy of this order
on the Head of Department of the defendant and accounting
officer and
on the Director General of the Provincial Treasury within 14 days of
the date of this order.
9
The
aforementioned damages and costs are to be paid into the trust
account of the plaintiff’s attorneys, Sakhela Inc, the
details
of which are as follows:
Name
of account
:
Sakhela
Incorporated
Bank
name
:
First
National Bank
Account
Number :
[...]
Branch
code
:
250109
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances
On
behalf of the plaintiff:
Adv Dugmore SC and
Adv Sambudla
Instructed
by
Sakhela Inc.
Plaintiff’s
Attorneys,
74 Madeira Street
Mthatha
On
behalf of the defendant:
Adv ND Ngadlela
Instructed
by
State Attorney
Defendant’s
Attorneys
94
Sissons Street
Fortgale
Mthatha
Date
heard:
16 May 2018
Date
delivered:
24 May 2018
[1]
MEC FOR ECONOMIC AFFAIRS, ENVIROMENT AND TOURISM, EASTERN CAPE v
KRUIZENGA AND ANOTHER
2010 (4) SA 122
(SCA)
paras
[6]-[22]
[2]
HLOBO v MULTILATERAL MOTOR VEHICLE ACCIDENTS FUND
2001 (2) SA 59
(SCA)
para
[10].
[3]
1958 (2) SA 465
(A) at 471A – D.
[4]
at 471B.
[5]
HLOBO V
MULTILATERAL MOTOR VEHICLE ACCIDENTS (SUPRA); IVORAL PROPERTIES
(PTY) LTD v SHERIFF OF CAPE TOWN 2005 (6) SA 96
(C).
[6]
1986 (4) SA 342 (D) 346I
ET
SEQ.
[7]
(Supra).
[8]
NOMVO SIDULWINI v MEC FOR HEALTH, EASTERN CAPE PROVINCE, ECHCM case
no 2336/2013, (7 November 2017)
para
(82)
[9]
MHLATSHENI v ROAD ACCIDENT FUND
2009 (2) SA 401
(ECD) at paras [16]
– [17]; THE MINISTER OF SAFETY AND SECURITY v ADDITIONAL
MAGISTRATE, N MOLO N.O AND KEITH CHIPPS. [2013]
ZAECGHC 89,
unreported judgment of Roberson J concurred in by Plasket J and
dated 23-08-2017
[10]
NZIMANDE v MEC FOR HEALTH, GAUTENG
2015 (6) SA 192
(GP) paras [19]
and [27].
[11]
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996