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[2014] ZAFSHC 81
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MEC, Department of Health: FS v Mothupi (A241/2012) [2014] ZAFSHC 81 (29 May 2014)
FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC OF
SOUTH AFRICA
Appeal No. :
A241/2012
In
the appeal between:-
MEC,
DEPARTMENT OF HEALTH:
FS
................................................................................
Appellant
and
KHOMOENG
JANE
MOTHUPI
.........................................................................................
Respondent
CORAM:
KRUGER, MOLOI
et
LEKALE, JJ
JUDGMENT
BY:
KRUGER, J
HEARD
ON:
19 MAY 2014
DELIVERED
ON:
29 MAY 2014
[1]
This is an appeal against a judgment granting condonation to the
respondent for her failure to comply with section 3 of the
Institution of Legal Proceedings against certain Organs of State Act
40 of 2002. As far as relevant section 3 provides:
“
(1)
No legal proceedings for the recovery of a debt 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 or its intention to
institute the legal proceedings
in question;
…
..
(2) A notice must –
(a) within six
months from the date on which the debt 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.”
Section
3(4)(b) provides that condonation for non-compliance with the
required notice may be granted by the court if it is satisfied
that–
“
(i)
the debt has not been extinguished by prescription;
(ii)
good cause exists for the failure by the
creditor; and
(iii)
the organ of state was not unreasonably
prejudiced by the failure.”
[2]
The chronology of events can be set out as follows:
28
February 2008: Incident upon which respondent bases her claim.
16
February 2009: Respondent consulted an attorney.
27 February 2009:
Attorney sends notice to Minister of Health, the first defendant,
which the court a
quo found
a misjoinder, which finding was
not appealed by the respondent.
12
October 2009: Summons issued against first defendant.
22
October 2009: Respondent gives notice of intention to amend and join
the appellant as second defendant.
8 December 2009:
Letter: State Attorney to respondent’s attorney advising him to
withdraw against Minister and give notice
to MEC.
22
February 2010: Letter: Notice to 2
nd
Defendant (MEC, appellant).
29
April 2010: Court order joining 2
nd
Defendant, plus order that Particulars of claim be served on 2
nd
Defendant.
11 August 2010:
Plea of both defendants (Minister and MEC) filed.
16
February 2011: Application for condonation launched.
2
March 2012: Application for condonation argued.
26
April 2012: Judgment granting condonation delivered.
19
May 2014: Appeal argued before Full Court
[3]
A point arises relating to the history of this litigation and in
particular the service of the summons on the appellant, the
MEC.
After the hearing of the appeal the legal representatives were
requested to file submissions on this point, and we are
grateful for
their inputs. Section 3(1) provides that no legal proceedings
for the recovery of a debt may be instituted against
an organ of
state unless notice has been given within six months of the incident,
or condonation has been granted. In their
plea the defendants
(the Minister and the MEC) raise the special plea that the plaintiff
did not give proper notice before the
particulars of claim were
served. The steps pertinent to this point are the following:
12
October 2009: Summons issued against first defendant (Minister).
27
November 2009: Plaintiff gives notice of intention to amend
particulars of claim by joining MEC as second defendant.
9 December 2009:
Defendant objects, saying joinder should be by way of application.
22
February 2010: Plaintiff gives notice of intention to institute
action against second defendant, MEC.
24
February 2010: Application to join second defendant launched: The
prayers are:
“
1.
That the applicant’s omission of citing and joining the second
respondent [MEC] as the second defendant be and hereby condoned
and
effected.
2. That the service
of the applicant’s particulars of claim be effected to the
second respondent.
3.
That the respondent’s objection of this amendment of joining
the second respondent on this same cause of action be dismissed.”
[4]
The state attorney sent a letter dated 11 March 2009 to the Registrar
by hand under the heading of this case, stating:
“
Please
take note that the defendants do not wish to oppose this application
and will abide by the court’s decision.”
[5]
On 9 April 2010 the plaintiff filed an amended notice of motion, and
on that same day a consent to draft order, signed by plaintiff’s
attorney and the state attorney, was filed. On 29 April 2010
the court made an order as set out in the consent:
“
1.
The Member of the Executive Council for the Department of Health,
Free State Province is hereby joined as the 2
nd
Defendant on these proceedings under Case No 5059/09.
2. The Plaintiff is
hereby directed to serve her particulars of claim to the second
defendant within 10 days from date hereof.
3.
The defendant hereby withdraws its notice of objection to the
amendment sought by the plaintiff under Case No 5059/09.”
[6]
On 27 May 2010 the sheriff served the amended particulars of claim on
the state attorney on behalf of the second defendant.
[7]
Mr Ndaba says the conduct of the appellant indicates that the
respondent wanted to move to the main issue as soon as possible.
Both parties were aware that the section 3 requirements had not been
met. He contends that by consenting to the draft order
and
joinder appellant decided not to raise the issue of condonation.
Ms Wright points out that an objection to the failure
to notify is
usually made from the first time after proceedings have been
instituted (usually in a special plea)
Minister of Safety and
Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) at 462C. Ms
Wright points out that at all times the appellant’s attorney
made it clear that the respondent would
be expected to apply for
condonation. The respondent did not file a replication to the
Special plea, and the respondent never
averred that the appellant
consented to the institution of proceedings without proper notice.
She says the appellant’s
consent only implied that an amendment
to the pleadings could be effected. It does not mean that the
appellant admitted the
averments in the amended pleadings.
[8]
In the state attorney’s letter of 8 December 2009 the
respondent’s attorney was told:
“
Even
if your joining of the Second Defendant is successful, you will have
the problem that you did not give proper notice to the
Second
Defendant in terms of Act 40 of 2002 and I will have no other option
but to take the necessary special pleas in this regard
and oppose any
application for condonation that you may bring.”
[9]
The appellant’s attorneys wanted to get to the main case.
They used this phrase in opposition to the “joinder
application”, not in contradistinction with the condonation
application. Condonation would be part of their plea in
the
main case.
[10]
The consent to the joinder of the appellant cannot be construed as
consent in writing as contemplated in section 3 of Act 40
of 2002.
[11]
Condonation cannot be had for the mere asking. The explanation
must be reasonable enough to excuse the default –
Grootboom
v National Prosecuting Authority and Another
2014 (2) SA 68
(CC) par [23]. The requirements for the granting of condonation
listed in section 3(4)(b) quoted above must be established
by the
applicant for condonation and are conjunctive –
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010 (4)
SA 109
(SCA) par [11]. The court has to be satisfied that the
appellant was not unreasonably prejudiced by the failure of the
respondent.
[12]
In
Madinda v Minister of Safety and
Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) the
appellant’s intended cause of action arose from unlawful
arrest, unlawful detention and assault perpetrated on
her by
unidentified members of the South African Police Service during the
night of 11 September 2004. Her notice in terms
of section
3(4)(b) of Act 40 of 2002 was about five and a half months out
of time. The notice was rejected by the state
attorney in
October 2005, yet the appellant did not commence an application for
condonation until July 2006. The appellant
was unaware of the
requirement of notice until she approached her attorney two months
after the statutory period had expired.
[13]
In
Madinda
the court held that in considering the requirements under section
3(4)(b) the court comes to an overall impression, bringing to
bear a
fair mind to the facts set up by the parties (par [8]). The
explanation for the default must be sufficient to enable
the court to
understand how it really came about and to assess conduct and motives
(par [11]). “Good cause for the
delay” is not
simply a mechanical matter of cause and effect. An applicant
for condonation must produce acceptable
reasons for substantially
nullifying culpability on her part for the delay (par [12]). The
two main elements at play in section
4(b) are the subject’s
right to have the merits of her case tried by a court of law and the
right of the organ of state not
to be unreasonably prejudiced (par
[12]). A court should be slow to assume prejudice for which the
organ of state does not
lay a basis (par [21]).
[14]
Ms Wright, for the appellant, identified three periods of delay:
(i)
28 February 2008: Incident; up to 16 February 2009 when she
consulted her attorney.
(ii)
16 February 2009 up to 22 February 2010 when notice was given to the
appellant.
(iii)
22 February 2010 up to 16 February 2011 when the condonation
application was launched
[15]
In respect of the first period of delay, Ms Wright submits that the
respondent only deals with this aspect in her founding
affidavit,
where she says that she was unaware of the notice period. She
does not say why she did not go to see her attorney
sooner. She
says she went to the physiotherapist, but gives no detail of the
times and nature of the visits. Ms Wright
says the court
a
quo
misdirected itself by holding (in para [46] of the judgment)
that the respondent “was primarily pre-occupied by one, and
only one, extreme challenge to regain her natural mobility”.
Ms Wright says a court must look at her explanation
objectively,
and the respondent must give reasons for the full period
of delay, which she has not done.
[16]
In respect of the second period of delay, Ms Wright says that the
respondent was told by her attorney that she was out of time.
The
appellant pointed out in the affidavits that the respondent did not
explain the delay. In spite thereof she did
not avail herself
of the opportunity to explain her delay. In between notice was given
to the Minister of Health. The respondent’s
attorney took
the wrong steps. The Minister is not the correct party to sue,
the MEC is, as the appellant’s attorneys
pointed out to the
respondent’s attorney in correspondence in response to the
proposed amendment to join the MEC, quoted
in para [37] of the
judgment of the court
a quo
.
Further Ms Wright points out that the respondent does not say
her attorney was responsible for the delay, as was the situation
in
the decision of
MEC for Education
KwaZulu-Natal v Shange
2012 (5) SA
313
(SCA) where the court was dealing with a minor. There the
attorney accepted blame, which is not the case here. No
affidavit
has been filed by the respondent’s attorney
explaining his delay.
[17]
As to the third period of delay, the delay in bringing the
condonation application, that delay is due to the fault of the
respondent’s attorney. Ms Wright says with reference to
Saloojee and Another NN.O. v Minister
of Community Development
1965 (2)
SA 135
(AD) at 141C-D that considerations
ad
misericordiam
should not be allowed to
become an invitation to laxity. There is a limit beyond which a
litigant cannot escape the results
of the attorney’s lack of
diligence;
Colyn v Tiger Food
Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at 9 H. Ms Wright says although the
respondent does not blame her attorney for the delay, the court
a
quo
did so. Mr Ndaba for the respondent
says that attorneys are human, they make mistakes.
[18]
Court cases are conducted by attorneys and counsel on behalf of
litigants. Litigants must accept responsibility for what
their
agents, the legal representatives do. In most cases litigants
will not be aware of procedural requirements. But
litigation
cannot be conducted on the basis of the client pleading ignorance and
thereby seeking to avoid or excuse compliance
by the legal
representative of procedural rules. That would lead to chaos.
As the Appellate Division said in 1965 in
Saloojee
and Another NN.O. v Minister of Community Development
(
supra
),
confirmed in
Colyn v Tiger Food
Industries Ltd t/a Meadow Feed Mills (Cape)
(
supra
),
there comes a point beyond which the litigant cannot avoid liability
for the legal representative’s default.
[19]
Looking holistically at the facts and in particular the conduct of
the respondent and her attorney, the appellant’s attorneys
from
the outset informed the respondent’s attorney that the Minister
of Health, the first defendant, was not the correct
party to cite,
but that the MEC, the appellant, should be cited. In spite of
repeated advices in correspondence and the affidavits,
the
respondent’s attorney, until the hearing in the court
a
quo
, insisted that the Minister of
Health was the correct party. Especially the delay during the
period 16 February 2009 up to
22 February 2010 at which time the
respondent knew that the appellant needed to be cited, counts heavily
against the respondent.
[20]
The delays of the respondent are substantially unexplained. The
respondent did not make out a case for condonation.
ORDER
1.
The appeal is upheld with costs.
2. The order of the
court
a quo
is amended by the deletion of paragraphs 60.4 and
60.5 of the judgment and the substitution therefor of the following:
“
60.4
The plaintiff’s condonation application fails as regards
the second defendant.
60.5
The plaintiff is directed to pay the costs of the condonation
application.”
_____________
A. KRUGER, J
I
agree.
_____________
K.J. MOLOI, J
I
agree.
_____________
L.J. LEKALE, J
On
behalf of appellant: Adv G.J.M. Wright
Instructed
by:
State
Attorney
BLOEMFONTEIN
On
behalf of the respondent: Adv V.D Ndaba
Instructed
by:
Ponoane
Attorneys
BLOEMFONTEIN