About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 773
|
|
MEC for the Department of Health. v Sarahkadi (14080/2007) [2016] ZAGPPHC 773 (26 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER:14080
DATE:
26 August 2016
MEC
FOR THE DEPARTMENT OF HEALTH,
NORTHWEST
..
PROVINCE Applicant
V
PUKI
..
REBECCA
..
SARAHKADI
Respondent
JUDGMENT
MABUSE J:
[1]
This matter conflates two applications, an application for rescission
of a judgment granted by this court in favour of the respondent
against the applicant on 4 September 2014; and secondly, an
application for condonation for the late filing of the application
for rescission. According to the evidence in the papers, the
application for rescission is brought in terms of Rule 31 of the
Uniform Rules of Court, and according to the supplementary heads of
Mr. da Silva, counsel for the applicant, such an application
for
rescission is brought in terms of Rule 42. This supplementary heads
was only handed to Mr. Pienaar, the respondent's attorney,
at the
commencement of the matter and as a result Mr. Pienaar had to read
them while Mr. da Silva was busy arguing the applicant's
case. Out of
sheer desperation to bring this matter to finality, Mr. Pienaar did
not want to object to the lateness of the supplementary
heads of
argument.
[2]
I will deal first with the application for rescission as set out in
the evidence by the deponent and supported by a colleague's
evidence
before turning to the points raised by Mr. da Silva in his
supplementary heads of argument. The respondent issued summons
against the applicant for a claim in the amount of R1,907,440.58 for
alleged medical negligence which resulted in the death of
her son. It
is common cause between the parties that the trial of the said action
was properly enrolled for hearing on 30 January
2012 by which date it
was expected that the parties would be ready for trial. On the said
date, the office of the state attorney
at Mafikeng sent one of its
attorneys, one Mr. Luvuyo Ndunyana ("Ndunyana"), to attend
to court. The purpose of his appearance,
according to the testimony
of Rosetta Mamoka Makhamathe ("Makgamathe"), an attorney of
this court who now practises as
such in the state attorneys' office
in Polokwane after having been relocated from Mafikeng to Polokwane,
was to seek a postponement
of the matter.
[3]
The matter was to be heard before Webster J, now retired. The said
Ndunyana appeared before the court and informed the court
firstly,
that he had been instructed to seek a postponement of the matter and,
secondly, that he did not have the right of appearance
in the North
Gauteng Division of the High Court of South Africa, Pretoria. Webster
J informed Ndunyana that under those circumstances,
he, Ndunyana
would not be permitted to appear before the court. It is contended by
the said Makhamathe and supported by the said
Ndunyana, also an
attorney of this court, and now attached to the Special Investigative
Unit in Pretoria that, without establishing
what Mdunyana meant when
he informed the court that he had no right of appearance, the court
proceeded to hear the matter without
the applicant being represented
at the hearing. It is furthermore contended by Makhamathe and
supported by Ndunyana that the applicant
did not enjoy legal
representation at the said trial simply due to the mistaken belief by
both Ndunyana and the court that he had
no right of appearance. In
his supplementary heads of argument, Mr. da Silva raised, in terms of
Rule 42, what he referred to as
the four mistakes that Webster J made
in his judgment. One of those four mistakes, he submitted, as the
first mistake, relates
to Ndunyana's right of appearance. This issue
has been fully dealt with in the applicant's main heads of argument
which have been
crafted by a certain Professor P. Madima (SC).
[4]
Because the court had informed Ndunyana that he would not appear
for the applicant the matter proceeded on an undefended basis. The
respondent's legal representative proceeded to lead evidence to prove
the respondent's claim whereafter judgment was reserved.
After
Webster Jhad considered the evidence before him, he proceeded to
craft a judgment. A written judgment by the said judge was
handed
down or delivered on the 4th of September 2014. According to the
evidence of the applicant's witnesses, a copy of the judgment
was
only received by the applicant and the office of the state attorney
at Mafikeng on 26 February 2015.
[5]
The applicant now states that in the light of the provisions of s 3
(4) and s 4 (4) of the Right of Appearance Act 62 of 1995,
Ndunyana
did in fact have the requisite right to appear before the court; that
if the court had enquired from him the date on which
he was admitted
as an attorney; where he practised his profession and whether he had
any right of appearance in the High Court
in the Province of his
employment, it would have arrived at a different conclusion. On this
basis the applicant submits that the
absence of the appellant's legal
representative was not wilful in the circumstances.
[6]
It is the applicant's case, therefore, that the applicant's
non-representation, at the hearing of the matter, was a procedural
irregularity by Ndunyana and the court's mistaken believe that
Ndunyana had no right of appearance before it. As pointed out
earlier,
Mr. da Silva also raised this point in his supplementary
heads of argument. In support of this submission he referred the
court
to an authority which he had not cited in his supplementary
heads, in which the court had held that an attorney who had been
admitted
in one province had the right of appearance in another
province in this country. He conceded, though, that there was nothing
that
the court could do after Ndunyana had told it that he had no
right of appearance. There was therefore no fault on the part of the
court that Ndunyana could not appear before it. The applicant applies
for rescission of the judgment on the afore going grounds
and
contends, in addition, that it has a
bona fide
defence.
[7]
Despite what Ndunyana told the court, the application for rescission
is opposed by the respondent. The respondent's opposition
to both
application for rescission and the application for condonation are
premised on the answering affidavit deposed to by the
respondent
herself and supported by the affidavit of one Gerhard Johannes
Pienaar ("Pienaar"), her attorney of record.
Mr. Pienaar,
who appeared in this application for rescission for the respondent,
is the same Mr. Pienaar who appeared for the respondent
at the trial
of the matter on 30 January 2012. The respondent's version regarding
the events . of 30 January 2012 is as follows.
The respondent admits
that the matter was on the roll for hearing on 30 January 2012. She
adds, however, that when the matter was
initially called there was no
legal representation for the applicant. The applicant does not
dispute this allegation. According
to the respondent, even before the
matter could commence, her legal representative called a certain
advocate Chwaro to enquire
about the applicant's representation at
the hearing. The said advocate informed him that he had not been
briefed for the trial.
The reason why the respondent's representative
called Mr. Chwaro and enquired from him whether or not he did not
have any brief
to appear for the applicant in the matter was that the
said Mr. Chwaro had been part of the team that was present at the
pre-trial
conference. [8] The applicant is unable to dispute the
steps that the respondent's attorney took to find out why there was
no legal
representation for the applicant at the trial. Instead, in
its replying affidavit, the applicant concedes that it was not ready
to proceed to trial on that date. It is puzzling to this court for a
party in one breath to say that it was not ready to proceed
with the
trial of the matter and to allege in another breath, in his founding
affidavit, that
"Had
Ndunyana
been
allowed
to
be
heard, and
his
application for
apostponement
refused, Ndunyana would
have
challenge
(sic) the respondent's evidence; lead (sic)
the
evidence of the
applicant's witnesses; and
particularly highlighted
the
importance
of
the expert
evidence
and
opinion of
Dr. Linda
M
Eske/I-Blok/and which
would
have
assisted
the
court
in
reaching
its
finding.
•
[9]
I have several problems with the above testimony. On his own version,
the applicant was not ready to proceed with the matter.
In the
premises it is highly unlikely that its witnesses would have been at
court. In fact nowhere in his testimony is it stated
that its
witnesses were present at court on that particular day.
Accordingly there is no truth in the applicant's testimony
that,
given a chance, it would have led the evidence of its witnesses.
Secondly, there was no application for a postponement before
the
court. Although Ndunyana came to court with the instructions to
postpone the case which had been properly enrolled for hearing,
there
is no evidence in the founding affidavit as to the date on which the
applicant became aware that he would not be in a position
to proceed
with trial on the day of the hearing; no evidence of the steps he
took when he realised that he would not be ready to
proceed to trial.
More importantly, there is no evidence that Ndunyana came to court
armed with a substantial application for postponement.
There is
therefore a paucity of material details in the application. A duty is
imposed on a litigant, who seeks the indulgence
of the court, to
honestly disclose all material facts so as to enable it to assess his
conduct and to decide whether to exercise
its discretion in his
favour.
[10]A
postponement is not there for the taking. In terms of our practice,
in particular of this division, either of the two parties
may, by way
of a substantive application and notice to his or her opponent before
the trial, or even on the day of the trial, apply
to court for a
postponement of the matter. It should be borne in mind that the
granting of an application for postponement is in
the
nature
of an indulgence and that it lies entirely in the court's discretion
to grant or refuse the application. There was no application
for a
postponement before the trial court and accordingly no reason existed
why the trial court could not proceed with the matter.
Mr. da Silva
also was ready to admit that on 30 January 2012, procedurally nothing
prevented the court from proceeding to hear
the matter. The other
problem that the applicant was faced with is that the matter had been
properly enrolled; the respondents'
witnesses were present at court
and the respondent's legal representative had never been warned in
advance that there would be
an application for a postponement, if
ever there was any.
[11]
In her testimony the respondent mentioned that during the tea-break a
young man from the state attorney's office Mafikeng came
and asked
her attorney whether the matter could be postponed.That young man.
whom they regarded to be Ndunyana, failed to furnish
any reasons why
the matter should be postponed. The respondent testified that on her
instructions the request directed to her for
the postponement of the
matter was refused. The respondent's affidavit that Ndunyana only
spoke to a legal team during a tea-break
has not been refuted by the
applicant. At any rate it is not the applicant's testimony that he
was present when the matter was
allocated to Webster J. in the
morning.
[12]
According to the respondent, her legal representative drew the
attention of the court, after speaking to the said Ndunyana,
that
there was someone from the state attorney's office in Mafikeng in the
courtroom. Seemingly the said Ndunyana told the court
that he sought
a postponement. There was no such application for postponement before
the court. When the court made enquiries,
he told the court that he
had no right of appearance. This evidence is admitted by the
applicant. The problem I have with the evidence
of the applicant is
the submission by the applicant that the court should have enquired
from Ndunyana about the date of his admission
as an attorney, where
he practised as an attorney, and whether he had the right of
appearance before the court. In my view, there
was no duty on the
court to do so once Ndunyana himself had told the court that he had
no right of appearance. It was incumbent
upon him to know that he had
a right of appearance. Certainly, the court had to accept his word,
considering the fact that he came
late to court; he appeared before
court to seek a postponement without having prepared any substantial
application for a postponement;
and he failed to provide the court
with any explanation why he told the court that he had no right of
appearance or why he himself
believed that he had no right of
appearance.
13]
There is no reason why the state attorney in Mafikeng did not appoint
local correspondents to act on his behalf; and no reason
has been
furnished still why that office did not brief counsel to appear for
the applicant. Ndunyana failed to ask for the matter
to be stood down
while he sought counsel who would have appeared before the court.
[14]
I now turn to the question whether the applicant's attorneys were in
wilful default. In her answering affidavit, the respondent,
who was
duly supported by her witness, states that a copy of the judgment was
sent to the applicant's attorneys by telefax on 14
September 2014.
The applicant has admitted this evidence. Something disconcerting
about this testimony of the applicant is the
following. In the
founding affidavit, in particular paragraph 3.5 thereof, both
Makhamathe and Ndunyana testified that the applicant
received a copy
of Webster J's written judgment on 26 February 2015 and furthermore
that the state attorney's office at Mafikeng
received such a copy on
25 February 2015. This evidence cannot be reconciled with the
evidence contained in the replying affidavit,
in particular, in
paragraph 30 in which they admit that the respondent's attorneys
faxed a copy of the judgment to the state attorney
on 14 September
2014. They have not denied that they received a copy of the relevant
judgment on 14 September 2014. In the absence
of any explanation from
them the conclusion is inescapable that they received a copy of the
judgment on the day it was sent to
the State Attorney's office on 14
September 2014 and were therefore aware from the said date of the
judgment against the respondent.
The reason why the judgment was
never brought to their attention was never explained. It would appear
that the judgment was swallowed
somehow in the offices of the state
attorney as a consequence of what seems to be inexcusable
inefficiency on their part. It is,
in my view, difficult to regard
this as a reasonable explanation.
[15]
Clearly there is a material contradiction that called for an
explanation. No explanation has been placed before the court with
regard to this material inconsistency. The explanation relates only
to the period starting from 25 February 2015. The applicant
concedes
that the application for rescission was 34 days late. The version of
the applicant's attorneys that they became aware
of the judgment is,
for another reason, not correct because a copy of the respondent's
notice of taxation was served on them on
19 September 2014. Clearly
the applicant has failed to bring this application for rescission
within a reasonable time after it
had gained knowledge of it.
[16]
Does the appli
cant have
any
bona
tide
defence
All
that the applicant stated about a
bona
tide
defence is contained in the following paragraphs of the founding
affidavit:
"29 Had Ndunyana
been allowed to be heard and his application for apostponement
refused, Ndunyana would have challenge (sic)
the respondent's
evidence; lead (sic) evidence of the applicant's witnesses; and
particularly highlighted the importance of the
expert evidence and
opinion of Dr. Linda M Eske/I-Blok/and, which would have assisted the
court in far-reaching its finding.
30
I
respectfully
submit
that
the
applicant
has
a
bona
tide
defence
to
the
respondent's
claim
and
I
verily
believe that
it
carries
more
than
an
even
chance
of
success
31
I
accordingly
pray
that
the
application
for
rescission
be
granted
with
the
appropriate
order
of
this
court
in
the
event
of
opposition.”
In
my view, the applicant has failed to show that it has any
bona
fide
defence. Any
bona
fide
defence that the
applicant had should have appeared in the founding affidavit. On the
other hand the respondent has denied that
the applicants had any
chance of success on either the merits or the quantum. This is so
because there is no basis set out for
the allegation that it has a
more than even chance of succeeding on the merits of the case. I
agree with the respondent's view
that if regard is had to the
founding affidavit the only aspect that it dealt with is the alleged
non-presentation of the applicant
at the trial. This allegation, in
my view, does not relate to the merits of the case but to a
procedural issue. There is no case
made out by the applicant that the
quantum was wrongly awarded. During his argument, Mr Pienaar told the
court that on 30 January
2012, all that the court had to do was to
listen to the evidence on quantum. In Smith v Saambou
2002 (6) S A
346
(SE), the court stated that
"Where the applicant has
provided
apoor explanation for default, agood defence
may compensate. In circumstances where the strength of the
defence
on
the
merits
becomes
crucial, the Applicant
must
fumish
sufficient
information to
satisfy the court that he or she has a good defence.... The
court has a wide discretion
in evaluating good cause in
order to ensure thatjustice is done.•
[17]
It is the respondent's case that she will suffer severe prejudice and
irreparable harm if the application is granted. This
is so because of
the time that has elapsed. All the expert opinions are now out-dated
and the trial will have to be heard afresh
and the costs will more
than ever double. More importantly the respondent's crucial witness,
one Dr. Vorster has died. The fact
of the death of Dr. Vorster is
that, in fact, she will be denied proper redress. Now lately evidence
has subsequently sufficed
that one, Professor Jacobus Pienaar, who
would have been one of the respondent's key witnesses at the trial of
the matter, has
now emigrated from South Africa to Sweden where he is
now attached to the University of Stokholm. This cannot be
compensated by
any order of cost.
"There is a limit
beyond which a litigant cannot escape the results of his attomey's
lack of diligence or the insufficiency
of the explanation tendered.
To hold otherwise might have disastrous effect upon the observance of
the Rules of this Court Consideration
ad miseticordiam
should not
be allowed to
become an
invitation to
laxity. In fact this court
has lately been burdened with an undue and increasing number
of applications for condonation in
which failure to
comply with the Rules of
this Court was due to neglect
on the
part of the attomey.
"See
Saloojee and Another v Minister of Community Development
1965 (2) SA
135
[A.DJ at p.1418-D.
[18]
On the question of the application for condonation it is the
respondent's view that such application should be refused as a
result
of the applicant's non-compliance with the prescribed time periods of
this court and furthermore as a result of an inordinate
delay
occasioned by the applicant. The applicant has failed to explain in
detail why there was such a long delay. In essence, the
only dispute
in the application relates to the quantum. A litigant should,
whenever he realises he has not complied with a Rule
of Court, with
haste apply for condonation. In the circumstances of this case, I
find it difficult to justify condonation unless
the applicant has
established strong prospects of success.
[19]
In his supplementary heads and in support of the application in terms
of Rule 42 of the Uniform Rules of Court, Mr. da Silva
raised, over
and above, Ndunyana's right of appearance, the following aspects as
three mistakes that Webster J made in his judgment:
19.1
that on studying the pleadings which have been provided by the
respondent, it is clear that the respondent's case in the court
a
quo
was based on emotional shock. The claim against the first
defendant (the Road Accident Fund) is set out at paragraph 10.3. It
is
specifically pleaded that the plaintiff experienced pain, shock,
trauma, psychiatric and psychological trauma and emotional impact.
This was also pleaded in paragraph 21.2 in regard to the alternative
claim against the second and third defendants.
19.2
Relying on the law of delict (6th Edition by Neethling, Potgieter,
Vorster) where the authorities do not refer to emotional
shock but to
psychological lessions, and also on Barnard vs Sanlam Bpk
[1998] ZASCA 84
;
1999 (1) SA
202
(SCA),
Mr. da Silva contended that the respondent
did not lead psychiatric evidence in the court
a quo.
There is
no merit, in my view, on this point because the respondent herself
testified and tendered the relevant evidence.
[20]
The third mistake that Mr. da Silva submitted that he discovered was
that on studying the pleadings there is no allegation
that the second
defendant (the applicant) was vicariously liable for the conduct of
Mapeka. Even if such allegation was made, it
was denied, so he
developed his argument. The judgment contains, on p 6, the following:
"Professor
Vorster further testified that on the basis of the probability her
present condition is linked with the instant
of the death ofher son."
[21]
Finally it is contended that it is clear that the claim with the
first defendant, the Road Accident Fund, was settled. The
point made
by the applicant is that the court
a quo
should have
taken this amount into account in determining the amount payable by
the applicant. It is submitted that the court
a
quo
failed to take the payment by the first defendant into account in
determining the amount payable by the applicant.
[22]
This, in my view, is no ground for setting aside the judgment which
was properly granted. If the applicants are disgruntled
by that fact,
Rule 42 provides for another manner of correcting orders without
having to set aside the judgment granted. In the
result Isee no merit
in this point.
[23]
In my view the office of the state attorney dismally failed to act
professionally in this matter. The attorney who handled
this matter
should, in my view, be reported to his or her professional body. The
fact is that the matter was at times handled with
disregard of the
standards expected of officers of this court by failing to brief
counsel for the trial. Ndunyana came to court
to seek a postponement,
well-knowing that he did not have the right of appearance. He failed
to make any alternative arrangement
for someone with the right of
appearance to argue a postponement or failed to appoint someone to
attend trial after the court refused
him the right to appear. He
failed to bring an application for rescission within a reasonable
time. The applicant also failed to
comply with the Rules of this
Court when it launched its application for leave to appeal. The
applicant '
'cannot
seek
relief
on
the
ground of
their
attorney's failure to
comply with
the
Rules
of Court,
because
those
Rules
were
designed
also
to
protect
the
opposing
party."
See De Wet and Others
v Western Bank 1979(2) SA 1031 [A.D.] at p.1034D-E.
[24]
I indicated to the parties during the hearing of this application for
rescission that I intend directing that copies of all
the relevant
documents pertaining to this matter be forwarded to the Law Society
of the Northern Provinces so that it could conduct
an investigation
into the conduct of the attorney or the attorneys who handled this
matter on behalf of the applicant. State Departments
cannot be
expected to pay, in addition, costs occasioned by the negligent
conduct of its professional staff. The order of costs
will therefore
be postponed sine die pending a receipt of a report from the Law
Society of the Northern Provinces. In the meantime
the following
order is made:
1.
The applications for rescission of the judgment and for condonation
are hereby dismissed.
2..The
issue regarding costs is postponed sine die pending receipt by this
Court of a report from the Law Society of the Northern
Provinces.
3.
It is hereby directed that the Registrar of this Court should forward
all the documents relating to the above matter to the Law
Society of
the Northern Provinces.
4.
The Law Society of the Northern Provinces is hereby directed to
conduct an investigation into the conduct of the attorneys who
were
handling this matter on behalf of the applicant and to submit,
thereafter, its findings to the Registrar of the Court as soon
as
possible.
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for
the
applicant:
..............................................
Adv
CA da Silva (SC)
Instructed
by:
.................................................................
The
State
Attorney
…
....................................................................................
c/o
State
Attorney
Pretoria
Counsel
for
the
respondent:
............................................
Adv. SP
de
la
Harpe
…
......................................................................................
Viviers
Inc.
Instructed
by:
...............................................................
Viviers
Inc
…
..................................................................................
c/o
Potgieter Marais Attorneys
Date
Heard:25 August 2016
Date
of
Judgment: 26 August 2016