About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 179
|
|
Kruger v Minister of Health and Others (1803/2014) [2016] ZAFSHC 179 (29 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1803/2014
In
the matter between:
MATTHEUS
GERHARDUS KRUGER
Applicant
and
THE
MINISTER OF
HEALTH
First Respondent
THE
MEMBER OF THE EXECUTIVE COMMITTEE
FOR
HEALTH, FREE STATE
Second Respondent
DR
J
WESSELS
Third Respondent
DR
A
BOTHA
Fourth Respondent
HEARD
ON:
04
AUGUST 2016
JUDGMENT
BY:
MBHELE,
J
DELIVERED
ON:
03
NOVEMBER 2016
BACKGROUND
AND INTRODUCTION
[1]
The applicant, an elderly male person, received medical treatment at
state owned hospitals in Bloemfontein between February
and June
2008. He suffered paralysis after undergoing laparoscopic
c
holecystectomy
at Pelonomi hospital on 22 February 2008 and post operation medical
treatment both at Pelonomi and Universitas hospitals.
[2]
On 17 June 2011 and some 3 years after the unfortunate incident in
question the applicant, through his Attorneys, issued summons
against
the respondents in the North Gauteng High Court for recovery of
damages on the grounds of alleged professional medical
negligence at
the hands of the respondents.
[3]
The respondents resist the action and, on 28 October 2011, filed
special plea to,
inter
alia,
the effect that the court lacks jurisdiction to hear the matter
because the applicant failed to comply with the prescripts of
sections 3(2) and 4 of Legal Proceedings Against Certain Organs of
State Act 40 of 2002 (the Act).
[4]
On 17 September 2013 the matter was transferred from North Gauteng
High Court to this court.
[5]
On 8 May 2014 the applicant, through his attorneys, notified the
respondents in terms of the Act of his intention to institute
action
against the respondents for recovery of damages on the basis of
alleged professional medical negligence.
[6]
The notice was followed by a letter on 9 May 2014 requesting the
respondents to condone non-compliance with the provisions of
section
3 of the Act.
[7]
The respondents, through state attorney, responded to the applicant’s
request for condonation and pointed out that same
could not be agreed
to.
[8]
On 13 November 2014 the applicant filed the instant application
moving for condonation of the late filing of the aforementioned
notice together with costs in the event of opposition by the
respondents.
[9]
The respondents are opposing the motion on the ground that there
exists no good cause to justify condonation.
ISSUES
IN DISPUTE
[10]
The parties are divergent on whether or not good cause exists for
condonation with reference to the following:
(a)
Whether
or not the delay involved has been adequately explained with the
respondents contending that there is no explanation of
the time lapse
between the issue of summons on 17 June 2011 and the notice in terms
of the Act, on 8 May 2014. Further, that
there is no
explanation for the lapse of time between June 2011 and November 2014
when the applicant filed his application for
condonation.
(b)
Whether
or not the claim has been extinguished by prescription with Mr Roux,
for the applicant, maintaining that the issuing of
summons
interrupted prescription.
(c)
Whether
or not the reasons advanced by the applicant for pre-summons delay is
acceptable with the respondents contending that the
reasons are not
sound and render the delay inexcusable.
(d)
Whether
or not the applicant’s claim has prospects of success with Mr
Claasen, for the respondents, maintaining that the only
expert
evidence on record is of Doctor JJ Wessels and Professor
SJA Smit who unanimously refuted any medical
negligence or
malpractice.
(e)
Whether
or not the respondents were unreasonably prejudiced by the failure to
file notice timeously with the respondents submitting
that due to
lapse of time there are no records available at Pelonomi hospital
with regard to the instruments used when performing
the medical
procedure in question on the applicant, their service record and
usage. Mr Roux contends that the second respondent
did not show
actual prejudice in that it alleges unavailability of service records
for the instrument used without proving that
such records are
in fact not available.
CONTENTIONS
BY THE APPLICANT
[11]
The applicant attributes delay to the fact that he did not deem it
necessary to institute a claim earlier owing to the advice
he
received from medical practitioners he consulted, who gave him
assurance that he would recover from paralysis.
[12]
He only consulted his attorneys in March 2011 and prior to consulting
them he was not aware of the provisions of the Act.
It was
submitted on behalf of the applicant that the summons was issued in
haste in the North Gauteng High Court to obviate prescription.
Mr
Roux, further, submits that the applicant furnished sufficient
reasons amounting to good cause for the granting of condonation.
He further contends that the respondent has not been unreasonably
prejudiced as Dr Wessels and Professor Smit were able to peruse
the
hospital records and provide clarity on what transpired. He contends,
further, that the submission by the second respondent
that the
doctors who treated the applicant have left the hospital, is without
basis as the doctors keep records of what they do
on the files.
[13]
He contends, further, that the issuing of summons in a wrong
court did interrupt prescription and the applicant
does
have a valid claim against the respondents.
CONTENTIONS
FOR THE RESPONDENTS
[14]
The second respondent’s legal administration officer deposed at
length to,
inter
alia
,
the effect that the respondents have been severely prejudiced in
their investigation of the alleged claim because the doctors
who
treated the applicant have since left the employ of the second
respondent and are outside the Free State Province. He
is of
the view that since the plaintiff’s claim emanates from the
alleged use of defective instrument when the operation
was conducted,
it is impossible to obtain service records for such instrument, after
the inordinate delay involved in bringing
the claim.
[15]
Mr Claasen contends that the period of 3 years that lapsed between
the issue of summons and the application for condonation
is not
sufficiently explained and it is an indication of the applicant’s
attitude and uncaring manner in which he approached
this matter.
[16]
He further contends that the premature summons issued by the
applicant in a wrong court failed to interrupt prescription as,
in
his view, the summons was invalid and it would not have enabled
the applicant to prosecute his claim to finality.
APPLICABLE
LEGAL PRINCIPLES
[17]
Section 3 of the Act provides as follows:
“
3.
- 1.
No
legal proceedings 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 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 date 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.
This
section further gives the court a discretion to condone non
compliance where:
i)
The
debt has not been extinguished by prescription.
ii)
Good
cause exists for the failure by the creditor to give notice
timeously.
iii)
The
organ of state was not unreasonably prejudiced by the failure
.”
[18]
The issue in question is whether the applicant has satisfied all the
requirements set out above.
[19]
The need to comply with the requirements governing litigation against
state organs was emphasised in
Mohlomi
v Minister of Defence
CCT41/95, where it was pointed out that
:
“
Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays in litigating damage the interests of justice. They
protract the disputes over the rights and obligations sought to
be
enforced, prolonging the uncertainty of all concerned about their
affairs. Nor in the end is it always possible to adjudicate
satisfactorily on cases that have gone stale. By then witnesses
may no longer be available to testify. The memories
of those
whose testimony can still be obtained may have faded and become
unreliable. Documentary evidence may have disappeared.
Such rules prevent procrastination and these harmful consequences of
it. They thus serve a purpose to which no exception
in
principle can cogently be taken.”
[20]
Condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it to the court’s
indulgence. The explanation must be reasonable enough to excuse
the default.
Grootboom
v National Prosecuting Authority and Another
2014 (2) SA 68
(CC).
[21]
In
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
SCA it was held:
“
The
phrase ‘if the court is satisfied’ in section 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.”
[23]
Section 27(1)(a) of the Superior Court Act 10 of 2013 provides as
follows:
“
If
any proceeding have been instituted in a division or at a seat of a
division, and it appears to the court that such proceedings
should
have been instituted in another division or another seat of that
division; that court may, upon application by any party
thereto and
after hearing all other parties thereto, order such proceedings to be
removed to that other division or seat, as the
case may be.”
[24]
Prescription Act provides that the running of prescription shall be
interrupted by the service on the debtor of any process
whereby the
creditor claims payment of the debt.
[25]
In
Nqula
v South African Airways (Pty) Ltd
2013 (1) SA 155
(SCA):
“
As
such a removal is now permitted by Act 41 of 2001, it may follow that
a party that is deprived of its right to object to the
court's
jurisdiction in consequence of the case being transferred to a court
having jurisdiction, cannot complain of either the
loss of its plea
to the jurisdiction or the loss of any advantage that would otherwise
flow from that plea being upheld, such as
the acquisition of a
defence of prescription if the plaintiff instituted action afresh. So
viewed, the legislation provides a means
for overcoming challenges
to the jurisdiction of the different high courts by treating such
challenges as procedural in character.
However, I do not rule out the
possibility that, for the purposes of prescription, the institution
of proceedings in a court not
possessing jurisdiction may be regarded
as ineffective to interrupt prescription.”
APPLICATION
OF LEGAL PRINCIPLES
[26]
The applicant was in terms of the law obliged to file the relevant
notice within 6 months from the date on which the cause
of action
arose but same was only served about 71 months later on 8 May 2014.
The explanation given for this inordinate delay
is that it only
dawned on the applicant around March 2011 that his paralysis was
permanent. There is a need to explain the
delay after March
2011.
[27]
The applicant had to apply for condonation as soon as it became
necessary to do so. The respondents raised a special
plea of
lack of jurisdiction and failure to comply with section 3 of the Act
in November 2011. The matter was only enrolled
in this court
during May 2014 and about 8 months after the transfer was granted by
the North Gauteng High Court.
[28]
Application for condonation was only filed in November 2014, 3 years
and 5 months from the date of institution of action and
3 years from
the date the applicant became aware of the need to apply for
condonation. The applicant has, at all material
times, since
March 2011 been legally represented by an attorney who was in a
better position to understand what was required of
the applicant to
prosecute his claim successfully. The delay involved in
all significant stages of this matter is unreasonable.
It has
not been fully explained by the applicant.
[29]
Applicant’s claim hinges around a laparoscopic cholecystectomy
allegedly performed on him with a defective cautery machine.
The
applicant failed to sufficiently deal with prospects of success in
this case. The only version I have is
that of the respondents
as far as the extent of culpability on the part of the respondents is
concerned.
[30]
With the evidence before me, I am persuaded that applicant’s
prospects of success are sequestered.
[31]
The Superior Court Act 10 of 2013 permits transfer of matters from a
court that does not have jurisdiction to a court that
has
jurisdiction to hear the matter. This process is procedural in
nature.
[32]
The respondents were served with the summons before the applicant’s
claim could be extinguished by prescription
[33]
Service of summons in the North Gauteng High Court would not have
enabled the applicant to prosecute his claim to finality
due to lack
of jurisdiction.
[34]
For prescription to be interrupted the following must be met:
(i)
There
must be a process;
(ii)
The
process must be served on the debtor;
(iii)
By
that process, the creditor must claim payment of debt.
[35]
The applicant’s action was duly transferred to this court.
The action proceeded in this court on the same cause
of action as the
original process instituted in the North Gauteng High Court.
[36]
The continuation of applicant’s action is governed by the rules
which provide for transfer of a matter from one court
to the other.
It is my view that the institution of proceedings in a court with or
without jurisdiction
does interrupt prescription.
[37]
Mr Roux in his argument reiterates that the respondents have not
succeeded in proving that they were detrimentally prejudiced
in their
ability to investigate the matter. The respondents have, in my
view, shown sufficient evidence for the court to
infer presence of
unreasonable prejudice.
[38]
The respondents demonstrated how it would be difficult to locate
service records for the cautery machine alleged to have
been
used during the operation, and how that would deprive them of the
opportunity to investigate the matter properly.
[39]
I am not persuaded that the applicant has shown good cause for
condonation.
[40]
There is no reason why costs must not follow the event.
ORDER
Consequently,
the application is dismissed with costs.
______________
NM MBHELE, J
On
behalf of applicant: A. ROUX
Instructed
by:
c/o Spangenberg Zietsman & Bloem
Bloemfontein
On
behalf of respondents: JY Claasen SC
Instructed
by:
State Attorney
Bloemfontein
/PK