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[2017] ZAGPPHC 339
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Hadebe v MEC of Health Gauteng Province (3203/2015) [2017] ZAGPPHC 339 (28 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
SOUTH DIVISION, PRETORIA
CASE
NO: 3203/2015
DATE:
28 MARCH 2017
REPORTABLE:
NO
NOT
OF INTEREST TO OTHER JUDGES:
NO
In
the matter between:
NOKWESABA
NORAH
HADEBE
APPLICANT
And
MEC
OF HEALTH GAUTENG
PROVINCE
RESPONDENT
Heard:
11 November 2016
Delivered:
28 March 2017.
JUDGMENT
Molahlehi
J
Introduction
[1]
This
is an opposed application in terms of which the applicant seeks
condonation concerning the issuing the notice in terms of s.3
of
Institution of Legal Proceeding against Certain Organs of State (the
Act)
,
[1]
on
the respondent.
Background
facts
[2]
The claim against the respondent relates to the cause of the death of
her daughter, Ms Nombulelo Gloria Gumbi (the deceased)
who died on 2
February 2012. The deceased passed away soon after delivering a baby
through caesarian section at Pholosang Hospital.
The deceased is
survived by her mother, the applicant and two of her children.
[3]
At the time of her death the deceased was employed at a petrol
station and was earning R4000 00 per month.
[4]
On the 17 July 2013 the applicant addressed the letter of demand to
the Minister of Health and the respondent, and on 16 July
2015 she
issued summons against the respondent claiming damages arising from
the death of the deceased. The proceedings were instituted
on behalf
of the minor children and the applicant.
[5]
During March 2015 the respondent raised a special plea contending
that the applicant had failed to comply with the requirements
of ss.
3 and 4 of the Act.
[6]
It is common cause that the respondent is an organ of state and is
thus regulated by the Act and therefore the applicant was
obliged to
issue the notice in terms of
s.3
(1) of the Act, once she had decided to institute proceedings against
the respondent.
[7]
In terms of s. 3(1) of the Act the applicant had six weeks from the 2
February 2012, to serve the notice of intention to institute
legal
proceedings against the respondent. She instituted these proceedings
on the 17 June 2015, a period of four months after the
respondent
raised a special plea.
[8]
In terms of section 3 of the Act no legal proceedings may be
instituted against an organ of state unless:
a)
A notice in writing has been given of such intention or,
b)
The organ of the state in question has consented to the institution
of proceedings, against it
with or without such notice.
[9]
Section
3
(4)
(a)
of
the
Act
makes
provision
for
condonation
in
the
event
of
failure
by the claimant to serve the notice within the prescribed six weeks
period. A creditor is entitled to apply for condonation
either
because of failure to issue notice
or
where
a
defective
notice
was
served
on
the
respondent.
[2]
The
court
may
grant
condonation if the following requirements are satisfied:
i.
The debt has not been extinguished by prescription;
ii.
Good cause exists for the failure to issue the notice by the claimant
iii.
The
failure does not unreasonable prejudice the organ of state.
[3]
[10]
The applicant bears the onus of showing that all the requirements for
condonation as required by the Act have been
satisfied.
[4]
Issues
for determination
[11]
In the present matter the
issue of
prescription
does not arise. It follows therefore that, for the purpose of this
judgment, the issues that need consideration are,
good cause and
prejudice on
the
respondent.
Good
cause
[12]
It
is trite that in order to succeed in an application for condonation
for non compliance with the requirement of s. 3
of
the
Act,
the applicant has
to
provide a reasonable and acceptable explanation. The explanation as
stated in
Premier,
Western Cape v Lucky,
[5]
has
to be sufficiently full to enable the court to understand, how the
non-compliance with the provisions of the Act came about
and asses
the conduct and of the applicant.
[6]
[13]
In essence the
explanation proffered by
the applicant in the
present matter is
that she was ignorant of
her rights and that of the
minor children of
the deceased.
[14]
It was contended on
behalf of the respondent that this explanation should be rejected
because the applicant did not state the level
of her educational
background to assist the court in
determining how it came
about that she
lacked
knowledge of the requirement. The applicant has in her
replying affidavit stated that she only has Grade 6.
[15]
It seems to me
that
the lack of knowledge
averred by
the
applicant in her papers
went beyond the narrow requirement of s 3 of the Act. The lack of
knowledge included the
broader knowledge about
her right and those of
the minor children to
claim damages for the alleged negligent cause of the death of the
deceased by the respondent's staff. This
in my opinion does not seem
unreasonable for a person with
her educational level
and
work experience.
[16]
In
Morumo
v Minister of Police,
[7]
the
court
in dealing the
issue
of
good
cause in relation to non-compliance with s 3 of the Act, in the
middle of paragraph [7] of the judgment held
that:
"[7]
In my view the plaintiff's ignorance accounted for her failure to
file the section
3 notice timeously. As soon as she was aware of the
requirement to file this notice, the noticed was filed on her behalf
by her
attorneys. Counsel for the defendant contended that to show
good cause the plaintiff should have gone further to explain why she
waited 10 months before she consulted her attorneys regarding the
alleged unlawful arrest, detention and assault. Counsel for the
plaintiff submitted that she has made out a prima facie case of
unlawful arrest, detention and assault and that she need not provide
any explanation regarding her delay in bringing the Condonation
application. In the
Madinda
case, the court held that
subsequent delays in bringing the application for Condonation does
not contribute to good cause as they
did not contribute to failure to
file the notice (at para 14). I agree with this approach by Heher JA.
I am of the view that the
plaintiff has shown good cause for failing
to file the section 3 notice within the prescribed time."
[17]
In
Minister
of Safety and Security v De Witt,
[8]
the
court found that there are two instances where a creditor may apply
for condonation in terms of Section 3 of the Act. A creditor
who has
failed to give the notice in terms of the Section may apply for
condonation where the state opposes the proceedings on
the basis of
the failure. An application for condonation may also be applied for
where the notice is sent out of time.
[18]
The court in the above
case further held that:
"[12]
The very purpose of the provision allowing condonation is to give a
court
a
discretion
to determine whether the organ of state can rely on noncompliance,
whatever form that may take. If this were not so,
as was pointed out
by Somyalo AJ in Moise, the requirement of written notice as above,
para 13 10 precondition to the institution
of legal proceedings would
be
in itself an absolute bar to such proceedings
and would constitute a real impediment to the claimant's access to
court. Indeed,
a blanket bar to the amelioration by a court of the
hardship worked by an inflexible precondition to the institution of
proceedings
could hardly survive constitutional scrutiny."
[19]
The other point raised by
the respondent is that the explanation of the applicant should be
rejected because she failed to take
reasonable steps to enquire what
her rights from the attorney who administered the estate of the
deceased. There were no attorney
appointed because there was, as the
applicant explained in
her replying affidavit,
deceased left no
estate
to report.
Prospect
of success
[20]
In considering the
prospect of success account should be
taken of the fact
that the onus to prove
liability for the alleged negligent death of the deceased rest with
the applicant. The respondent has
the evidentiary burden of
showing that the death of the
deceased was not caused
by its negligence.
[21]
The applicant states in
the founding affidavit that she has sought medical advice which
support her averment that the cause of
the death of the deceased
was the negligent conduct o of
the
respondent.
[22]
It is trite that prospect
of success entails showing a
prima
facie
or triable case
for the applicant. It is not required of the applicant to show that
the balance of probabilities favours her. In
this respect it has not
been disputed that the applicant died soon after giving birth by
caesarian at the respondent's hospital.
[23]
It is thus my view that
the applicant has satisfied one of the elements of good cause in
that she has shown that
there are good prospect of succeeding when the matter is finally
considered on the balance of probabilities.
Prejudice
[24]
The respondent contends that it is being prejudice by the applicant's
failure to comply with the provision of the Act. Whilst
I accept that
the delay in serving the notice required by s. 3(1) of the Act may
have caused prejudice to the respondent, I am
not persuaded that it
so unreasonable so as to bar the applicant from instituting her
damages claim. The applicant states in her
papers that she has a
medical records of the deceased which she is willing to avail to the
respondent.
[25]
In light of the above I am satisfied that the applicant has made out
a case for the condonation of the non-compliance with
the
requirements of Section 3(1) of the Act.
[26]
In the circumstance of this case I see no reason why costs should not
follow the results.
Order
[27]
In the premises condonation is granted with costs.
_________________
E
Molahlehi
Judge
of the South High Court,
Johannesburg.
APPEARANCE:
APPLICANT:
M Mjali
RESPONDENT:
M Makhubela
[1]
Act
number 40 of 2002.
[2]
Minister
of Safety and Security v De Witt (722/2007) 103 [2008] ZASA (10
September 2008)
[3]
Minister
of Agriculture and land affairs v CJ Rule (Pty) Ltd
2010
(4) SA 109 (SCA).
[4]
See
Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at
paragraph 16.
[5]
2012
(2) SA (SCA). See also Minister of Safety and Security v Spalding
(CA 136/08) ZAECHC 209 (5 December 2008).
[6]
see
also Minister of Safety and Security Republic of South Africa v
Spalding
[2008] ZASCA 34
;
2008 (4) SA 312
at par 11.
[7]
(37401/2011)
(2014) ZAG
par
640
(25 August 2014).
[8]
22/2007
103 (2008] ZASCA (19 September 2008)