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[2014] ZAFSHC 30
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Baloyi v MEC for Health of the Free State (A174/2013) [2014] ZAFSHC 30 (13 March 2014)
IN THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
No: A174/2013
In
the appeal between:
PUMLA
BALOYI
.......................................................................................................
Appellant
and
MEC
FOR HEALTH OF THE FREE
STATE
........................................................
Respondent
CORAM:
RAMPAI et KRUGER et VAN DER MERWE, JJ
JUDGMENT:
KRUGER, J
HEARD
ON:
10 MARCH 2014
DELIVERED
ON:
13 MARCH 2014
[1]
This is an appeal against the order of absolution from the instance
with costs granted at the end of appellant’s case
by Ebrahim J.
The case concerned an incident on 28 June 2002 when appellant
fell on her knee and was taken to the Harrismith
Hospital by
ambulance where she was seen by Dr Bekker who diagnosed soft tissue
injury and prescribed tablets. She left for
Johannesburg the
following day by car where she was seen by an orthopaedic surgeon a
day or two later who had x-rays taken and
diagnosed a fracture of the
acetabulum, (the socket of the hip bone into which the head of the
femur fits) which was displaced.
Appellant underwent corrective
surgery in Johannesburg. Appellant’s case is that the
surgery was made necessary by
the incorrect diagnosis by Dr Bekker.
The grounds of negligence set out in the particulars of claim
are that the hospital
staff at Harrismith (1) failed to correctly
diagnose the condition of the appellant; (2) failed to have x-rays
taken, and (3) failed
to take any or adequate steps to ensure that
appellant would not further injure herself.
[2] In
the plea respondent denied that appellant suffered a fractured or
displaced acetabulum, alternatively defendant pleaded that
such
fracture or displacement occurred after her release from the care of
the Harrismith Hospital.
[3]
Appellant’s case is that the displacement occurred after she
was seen by Dr Bekker in Harrismith. Dr Schnaid, the
expert
orthopaedic surgeon called by the appellant testified that it was
possible that the displacement occurred before Dr Bekker
saw her but
probable that it occurred thereafter.
[4] The
trial commenced on 15 November 2005.On 20 June 2006 the
cross-examination of the appellant (who was the first witness to
testify) continued.
[5] The
trial continued on 20 June 2007. On that day Dr Schnaid testified.
He said that when he examined the appellant in
Johannesburg
after looking at the x-rays he found that there was a displacement of
the acetabulum. His view was that at Harrismith
Hospital the
appellant should have been immobilised on a bed. In cross-examination
Dr Schnaid said: “I can’t say, look,
this definitely
happened.What I can say is there are probabilities that could have
happened because she was subjected to everything
afterwards.”
His view was that the displacement of the acetabulum probably
occurred due to the delay in treatment.His view
was that even sitting
in a wheelchair created enough force to disturb the fracture
appellant had. The appellant was subject to
stressing of the hip
joint from the moment she fell on her knee until she was admitted to
the Brenthurst Clinic in Johannesburg.
The only time she was
not stressed out was when she lay flat on her back in traction. Dr
Schnaid agreed that the displacement
could have taken place when
appellant was carried out of the boat (she took a two-hour boat trip
after having fallen and being
unable to stand). Dr Schnaid
said, in response to a question by the court, that he was unable to
comment at all on the time
when the displacement occurred.
[6]
Appellant’s case was closed at the end of Dr Schnaid’s
evidence, on 20 June 2007. Mr Hefer brought an application
for
absolution. Judgment was given on 22 June 2007.
[7] The
trial judge found that she was unable to make a finding that the
displacement occurred after admission to the Harrismith
Hospital.
She found it far more probable that the displacement occurred
immediately after the fall and before the diagnosis
at Harrismith
Hospital. She accepted that the misdiagnosis of Dr Bekker
amounted to negligence, but found that “the
evidence before me
is not such upon which a reasonable court might find for the
plaintiff and give judgment against the defendant”.
[8]
Application for leave to appeal was filed with the registrar on 5
July 2007.
[9] The
court
a quo
heard the application on 30 November 2012 and,
according to counsels’ Heads of Argument, granted leave to
appeal to this
court. The record does not contain the
proceedings relating to the application for leave to appeal or the
judgment granting
leave to appeal.
[10] To
determine whether absolution should be granted at the end of
plaintiff’s case the question is whether there is a reasonable
inference which favours the plaintiff (
Marine & Trade
Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at
38C-D; 39A-B). If there are two possible inferences of about
the same probability, absolution should be refused (
Du Toit v
Vermeulen
1972 (3) SA 848
(A) at 855A-F). In the
ordinary course of events absolution at the end of plaintiff’s
case is exercised sparingly (
Gordon Lloyd Page & Associates
v Rivera and Another
2001 (1) SA 88
(SCA) at 92 I –
J). The question is whether there is evidence upon which a
court, applying its mind reasonably to such
evidence, could or might
(not should, nor ought to) find for the appellant (
Claude Neon
Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409 G –
H).
[11]
Even bearing in mind Dr Schnaid’s concession that he cannot say
with certainty when the displacement occurred, it is
possible that a
reasonable court might find (at the end of respondent’s case)
that the displacement had not occurred at the
time Dr Bekker saw the
appellant. A reasonable court might find that the treatment the
appellant received from the Harrismith
Hospital, and in particular Dr
Bekker, amounted to negligence leading to liability towards
appellant. Absolution should not
have been granted.
[12] An
application for condonation served before us at the hearing of the
appeal:
“
1.
Granting condonation to the
Applicant/Plaintiff as far as need be by reason of
Applicant’s/Plaintiff’s failure to have
lodged the record
of appeal timeously and to have requested a date for the hearing of
such appeal in terms of the provisions in
terms of Rule 49(6).”
Rule
49(6) requires the appellant to apply for a date for the hearing of
the appeal within 60 days after delivery of the notice
of appeal.
The appellant must lodge three copies of the record together with the
application for the date of hearing (Rule
49(7)).
[13] In
the affidavit filed in support of the application for condonation the
applicant’s attorney states that immediately
after the hearing
of the application for leave to appeal, he requested copies of the
record from the transcribers. He made
repeated requests.
The record only became available on 12 August 2013 and was lodged
with the registrar on 16 August 2013.
Appellant’s
attorney says he had no control over the preparation and furnishing
of the record.
[14]
The respondent opposed the application for condonation and lodged an
opposing affidavit. Therein the deponent states
that when the
application for leave to appeal was heard in the court
a quo
on 7 December 2012 the complete record had already been transcribed.
He says with reliance on
Unitrans Fuel & Chemical (Pty) Ltd
v Dove-Co Carriers CC
2010 (5) SA 340
(GSJ) at 341 G-H that
the appellant’s attorney does not give details of requests to
the transcribers.
[15] In
the replying affidavit filed by appellant’s attorney in the
condonation application, Mr Rontgen states that he requested
the
completion and delivery of the record from the transcribers on the
day he filed his application for leave to appeal, being
5 July 2007.
[16] In
our view the appellant’s attorney has provided sufficient
reasons for the delay and condonation should be granted
with no order
as to costs.
ORDER
1. The
appeal succeeds with costs.
2. The
order of the trial court is set aside, and the matter is referred
back to the trial court to continue with the trial.
A. KRUGER,
J
I
agree.
M.H.
RAMPAI, J
I
agree.
C.H.G. VAN DER MERWE, J
For
Appellant: Mr K.M. Röntgen
Instructed by:
Symington & De Kok
BLOEMFONTEIN
For
Respondent: Adv J.J.F. Hefer
Instructed by:
State Attorney
BLOEMFONTEIN