NMZ obo SFZ v MEC for Health and Social Development of the Mpumalanga Provincial Government (1149/2020) [2021] ZASCA 184 (24 December 2021)

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[2021] ZASCA 184
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NMZ obo SFZ v MEC for Health and Social Development of the Mpumalanga Provincial Government (1149/2020) [2021] ZASCA 184 (24 December 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 1149/2020
In the matter
between:
NMZ OBO
SFZ
APPELLANT
and
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR HEALTH AND
SOCIAL DEVELOPMENT
OF THE MPUMALANGA
PROVINCIAL GOVERNMENT

RESPONDENT
Neutral
citation:
NMZ
obo SFZ v MEC for Health and Social Development of the Mpumalanga
Provincial Government
(Case
no 1149/2020)
[2021] ZASCA 184
(24 December 2021)
Coram:
ZONDI, MOLEMELA and
HUGHES JJA, MEYER and WEINER AJJA
Heard:
17
November 2021
Delivered:
This judgment was handed down electronically by
circulation to the parties’ legal representatives by email. It has
been published
on the Supreme Court of Appeal website and released to
SAFLII. The date and time for hand-down is deemed to be 09h45 on 24
December
2021.
Summary:
Prescription – notice in terms of s
3(4)
(b)
of Institution of Legal Proceedings Against Certain Organs of State
Act – application for condonation – requirements restated
–
condonation granted as good cause having been established.
ORDER
On
appeal from:
Mpumalanga
Division of the High Court, Mbombela (Kgoele J sitting
as court of first instance):
1
The appeal is upheld
with no order as to costs.
2
The order of Mpumalanga
Division of the High Court, Mbombela is set aside and is replaced
with the following order:
‘
The
application for condonation for the late service of the notice in
terms of s 3 of the
Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002
is
granted with no order as to costs.’
JUDGMENT
Hughes JA (Zondi
and Molemela JJA, Meyer and Weiner AJJA concurring)
[1]
On 3 October 2012, the appellant (NMZ), gave
birth to SFZ at Piet Retief Hospital, Piet Retief. SFZ was born
following prolonged labour,
and was subsequently diagnosed with
cerebral palsy due to asphyxia during delivery. NMZ instituted an
action in the Mpumalanga Division
of the High Court, Mbombela (the
High Court) on behalf of SFZ for damages arising from the alleged
negligent conduct of the employees
of the respondent, the MEC for
Health and Social Development of the Mpumalanga Provincial Government
(the MEC), during her birth.
On 24 October 2019 NMZ applied to the
High Court for an order in terms of s 3(4) of the Institution of
Legal Proceedings against
certain Organs of State Act 40 of 2002 (the
Act). She sought condonation for her failure to serve a notice of
intention to bring
legal proceedings against the MEC within the
period specified in s 3(2)
(a)
of the Act (s 3 notice). The MEC opposed the application. The High
Court dismissed her application on the ground that the delay was
unreasonable and the claim lacked any prospect of success. The matter
is before this Court with leave of the High Court.
[2]
The issue in this appeal is whether the High
Court was correct in dismissing the appellant’s condonation
application for failing
to give timeous notice under s 3 of the Act.
[3]
On 1 October 2012, NMZ who was 38 weeks pregnant
experienced labour pains. She went to Piet Retief Hospital for a
medical examination.
She was seen by members of the hospital staff.
After the review was conducted she was admitted to the maternity ward
at 19h30 for
an induction to be performed on the following day. The
plan ahead was for the nursing staff to monitor the feto-maternal
condition
every 4 hours.
[4]
On the following day, 2 October 2012, NMZ
complained of abdominal pains, however, it was noted that there were
no ‘palpable contractions’.
At 9h25 bearing down commenced and
she experienced expulsive contractions of 4:10 which resulted in her
being admitted to the labour
room to prepare for delivery. Delivery
only took place on 3 October 2012 at 9h45 with the assistance of an
episiotomy. The baby girl
was alive but delivered with the cord loose
around her neck. The Apgar scores commence at 3/10 to 9/10 with the
child not crying
and tired; the neonatal diagnosis was ‘aspiration
pneumonia’. Both the appellant and the child remained in hospital
until they
were discharged on 1 November 2012 at 11h00.
[5]
The appellant alleges that on discharge she was
‘informed by the hospital staff that [her] child will take some
time to develop’.
From
the expert reports it is recorded that as at 24 October 2012, that is
21 days after the birth, an additional diagnosis was added
to that of
the above, being ‘Birth Asphyxia’ and it was recorded that the
child suffered a ‘neurological deficit’ in that
‘she had poor
sucking reflex, poor grasp reflex, incomplete Moro and brisk limb
reflexes’.
[6]
She stated that she was informed on discharge
that her child had cerebral palsy and that the child’s development
would be slower.
She observed over time that, indeed, her child was
not developing as she ought to and that her development was much
slower as compared
to other new born babies. The appellant attributed
the delay in the delivery of her child as the cause of the child’s
severe brain
injury which resulted in the cerebral palsy.
[7]
Sometime in October 2013 the appellant’s family
had discussions with her pertaining to the medical condition of her
child. As a
consequence of these discussions she approached her
attorneys, Denga Incorporated Attorneys, on 30 October 2013. At this
meeting
she signed a ‘mandate and fee agreement’ and was advised
to obtain the medical records in order for them to assist her, as
they
were not able to inform her what went wrong with the delivery
without these records.
[8]
In terms of the mandate and fee agreement, the
attorneys’ mandate was to ‘render professional legal services to
[her], which shall
include the right to prosecute or defend
proceedings in any competent court and on [her] behalf to take all
necessary steps in connection
with medical negligence against MEC of
Health Mpumalanga’.
Notably, the appellant only signed the
contingency fee agreement with her attorneys on 11 July 2014.
[9]
The appellant claims that she first requested the
hospital to provide the required hospital records during the course
of November
and December 2013. She was advised by the staff to return
in 2014 as they had to first locate her file. She returned during
April
– May 2014 and was told, yet again, to return after a month.
Upon her return a month later, she was only given a document that
confirmed that she was an outpatient at the hospital. These claims
were not disputed by the respondent at all.
[10]
On 11 July 2014 she took the document to her
attorneys and consulted with them.
They advised that the document was not
sufficient to make an informed decision regarding the merits of her
case and to determine whether
the hospital was the responsible party.
So, off she went back to the hospital, this time armed with
correspondence from her attorneys
dated 11 July 2014. This informed
the hospital that they acted on her behalf as the letter enclosed a
power of attorney and consent
from the appellant to inspect her
hospital records in its possession.
[11]
In September 2014 she returned to her attorneys
to enquire if there was any response from the hospital whereupon she
was informed
that they had not been graced with a response to their
enquiry. This was when she became ‘discouraged and disillusioned
and decided
to accept that there was nothing to be done’ as even
the attorneys were unsuccessful, so she stated in her founding
affidavit.
She decided to focus her attention on the wellbeing of her
child. However, for good measure, around August 2015 she enquired
again
from her attorneys if there had been any response from the
hospital. Unsurprisingly, nothing was forthcoming from the hospital.
[12]
The appellant decided to go back to the hospital
in person to follow up on the availability of the hospital records.
She was fortunate
to encounter a willing female staff member who
advised her that her file was kept in a storeroom which was only
accessed by the Superintendent
of the hospital. This staff member
sought some time to get the file on her behalf. Encouraged and
assured of her assistance, the
appellant allowed her adequate time to
locate the file. This produced positive results as she obtained her
hospital records in June
2016.
[13]
On 11 July 2016 she delivered the hospital
records to her attorneys for their attention. Having received the
records so requested
the attorneys caused the s 3 notice to be
delivered to the respondent on 13 July 2016.
[14]
In
terms of s 3 of the Act, legal proceedings against an organ of state
to recover a debt must be instituted by written notice within
six
months from the date that the debt became due. Such notice should
briefly set out the facts giving rise to the debt and such
particulars that are within the knowledge of the creditor. If a
creditor serves the notice out of time, a state organ may refute
the
claim, leaving the creditor with no option but to seek condonation in
terms of s 3(4) of the Act.
[1]
[15]
The
mandatory compliance with the prescripts of the s 3 notification has
been restated in numerous judgments of this Court, including
Mothupi
v Member of the Executive Council, Department of Health Free State
Province
where the following was said:
[2]
‘
The
object of a provision such as section 3 is to enable the State, a
large and cumbersome organisation, to investigate claims so
as to
consider whether to settle or compromise a claim before costs
escalate unnecessarily, or to properly prepare its defence –
which
may be frustrated if it is unable to investigate relatively soon
after the alleged incident occurred.’
[3]
[16]
Informed from the facts set out above, it is
common cause that the claim of the appellant is against the MEC of
the Department of
Health and Social Development, an organ of State,
for damages. This amounts to a ‘debt’ as envisaged by s 3. It is
further common
cause that the summons was only served on 7 November
2017
to
which the MEC raised a special plea, citing non-compliance with s 3.
According to the MEC the s 3 notice ought to have been given
‘on or
before April 2013’.
The
MEC’s contention is based on the allegation that the cause of
action arose in October 2012 when the appellant was admitted to
the
hospital.
[17]
The respondent contends that, at the latest, the
appellant consulted an attorney and signed a ‘Mandate and Fee
Agreement’ on 30
October 2013, thus by then the appellant and her
attorneys were both aware of the debt. Consequently, so it is
contended, by 30 April
2014 the s 3 notice ought to have been
transmitted.
[18]
Pertinently in the special plea, the respondent
placed reliance on that agreement. According to the agreement, the
appellant had given
her attorneys a mandate to ‘take all necessary
steps in accordance with medical negligence against the MEC of Health
Mpumalanga’
and ‘to represent [her] and perform the following
acts and deeds arising out of the medical negligence in which [she]
or [her]
child by the name of [SZ] which occurred 30 October 2012’.
[19]
In
response to the special plea, the appellant applied for condonation
in terms of s 3(4)
(b)
for the late delivery of the s 3 notice. Section 3(4)
(b)
sets out the three requirements which must be satisfied for a court
to grant condonation for the failure to service a notice in
accordance
with the prescript of s 3(2)
(a)
.
The requisites are the following: the debt ought not to have been
extinguished by prescription, there must be good cause for the
failure by the creditor and lastly, the state organ must not be
unreasonably prejudiced by the creditors’ failure. It is
instructive
to bear in mind that the standard of proof to establish
the s 3(4)
(b)
requirements is not on a balance of probabilities but rather, the
‘overall impression made on a court which brings a fair mind
to the
facts set up by the parties’.
[4]
[20]
It is
necessary to reiterate the trite position in terms of s 3(2)
(a)
the
time period for the service of the notice is six months from the date
on which the debt becomes due. The failure to adhere to
such period
engages s 3(4)
(b)
which
sets out the factors that a court must be satisfied with in order to
grant condonation or not. It is well known that these factors
are
conjunctive for the grant of condonation.
[5]
[21]
In
addition to the s 3(4) requirements set out above, the trite
principles for the grant of condonation have to be borne in mind.
These were eloquently restated by this Court in
Ethekwini
Municipality
:
[6]
‘
Furthermore,
the factors set out in s 3(4), must be considered in light of the
well-settled principles on condonation. In
Mulaudzi
v Old Mutual Life Assurance Company South Africa Ltd
this
Court restated the factors which need to be taken into account when
considering an application for condonation as follows:
“
A
full, detailed and accurate account of the causes of the delay and
their effects must be furnished so as to enable the Court to
understand clearly the reasons and to assess the
responsibility.
Factors
which usually weigh with this court in considering an application for
condonation include the degree of non-compliance, the
explanation
therefor, the importance of the case, a respondent’s interest in
the finality of the judgment of the court below, the
convenience of
this court and the avoidance of unnecessary delay in the
administration of justice.”’
[22]
I turn to the analysis of the facts of the
present case. The first of the requirements of prescription is not in
issue as the appellant
was not claiming in her personal capacity but
rather on behalf of her minor child, which claim has not been
extinguished by prescription.
This was accepted by the court a quo as
common cause and requires no further attention. It was also affirmed
by the appellant’s
counsel during argument before us that the
appellant had not instituted a claim in her personal capacity.
[23]
The
second requirement of ‘good cause’ encompasses the issue of the
delay in instituting the claim, the prospects of success of
the
claim, the explanation advanced, the bona fide’s of the appellant
and any contribution in the delay by another party other
than the
appellant.
[7]
[24]
This
Court stated in
Madinda
that s 3(4)
(b)
(ii)
creates an explicit link between good cause and the delay in the
institution of the claim.
[8]
In
this regard, the appellant’s evidence was that she first sought
legal assistance on 30 October 2013 when the first consultation
was
held with her attorneys and the mandate and fee agreement was signed.
This was followed by the signing of the contingency fee
agreement on
11 July 2014. She received the hospital records on 11 July 2016. She
therefore claims that this is the date on which
she acquired
knowledge of the facts on which to formulate a claim against the MEC.
[25]
The difficulty that the appellant is facing is
that on her own version she was informed on discharge from the
hospital on 1 November
2012 by the hospital staff that her baby had
cerebral palsy. A further difficulty, was that she was informed that
her child’s growth
would be slower and verily she observed this
first hand. This led to a family conclave in October 2013 where her
family advised her
to seek legal advice, which she did on 30 October
2013.
[26]
In my
view, at best the appellant acquired knowledge of the material on
which her claim was based on 11 July 2014, when she received
her
outpatient documents from the hospital which she handed to her
attorneys. These documents confirmed her admission, delivery of
the
child at the hospital and that the child had cerebral palsy. At such
time, in my view, the appellant had at her disposal all
the relevant
facts necessary to issue the s 3 notification, as she had knowledge
of the identity of the debtor and the facts which
gave rise to the
debt.
[9]
This to my mind is when
prescription would have been initiated. Thus, the service of the
notification on 13 July 2016 was clearly
out of time and not served
within the prescribed six months from when the debt became due.
[27]
It is necessary to point out that because the
appellant had all the relevant facts pertinent to pursue her claim,
as at 11 July 2014,
there was no need to have the hospital records on
hand for service of the s 3 notification. This is demonstrated by the
fact that
the notice in question served by the appellant does not
even contain factors therein which are established from the hospital
reports.
[28]
Nevertheless
the enquiry does not end here in respect of ‘good cause’. In this
case the cause of the delay needs to be weighed
against the
assessment of the merits of the case to ascertain whether the merits
mitigate fault, thus advance prospects of success
on the merits. In
Madinda
this Court stated that prospects of success on the merits could
mitigate fault.
[10]
[29]
The court a quo summed up the case of the
appellant alluding to the merits thereof as follows:
‘
As far as prospects of success
is concerned, the legal representative of the applicant submitted in
this regard that it is clear from
the facts given by the applicant
that since she was admitted and complaining of lower abdominal pain
on 2 October, a period of 8
hours passed by without being checked.
The last time she was checked was the previous day at 22h30 and then
again on the 3
rd
at 6h30, and she delivered the baby three hours thereafter. She
indicated that every time when she requested for help, she was not
attended to except to be told that it was not yet her time for
delivery.’
[11]
I
n my view, the
court a quo committed a misdirection, when the learned judge ignored
the fact that the hospital staff failed to adhere
to the mandatory
4-hourly monitoring and concluded that the appellant had failed to
establish a prospect of success and that her
explanation on ‘good
cause’ was found wanting.
[30]
In addition, we should not lose sight of the fact
that on admission of the appellant it was clearly stated that
feto-maternal monitoring
should be conducted at 4-hourly intervals,
which from the records appears not to have been adhered to at all. An
example is that
the decision to monitor 4-hourly was mandated on 1
October 2012 at 19h30. The next monitoring recorded was 2 October
2012 at 6h02.
Further, examination of the records reflect that a
maximum of 8 hours passed and a minimum of 6 hours passed in between
examinations
of appellant. This strongly suggests that adherence to
the initial protocols mandated were not followed by the respondent.
[31]
It is apparent that there was no feto-maternal
monitoring at 4-hourly intervals as recommended on admission. The
hospital records
indicate that from admission at 19h30 on 1 October
2012 the next examination was at 06h02 on 2 October 2012 and
thereafter at 08h35,
11h00, 16h20 and 22h30.
Subsequently, on the same day we find
entries dated 2 October 2012 at 06h30, 08h30, 09h15 and delivery on 3
October 2012 at 09h45.
[32]
In my
view, based on the aforesaid alone, a prima facie case of negligence
has been established. As I have stated above the standard
to be
satisfied in terms of s 3(4)
(b)
is
not on a balance of probabilities but rather on ‘the overall
impression made on a court which brings a fair mind to the facts’
advanced by the parties.
[12]
[33]
I now turn to deal with the expert reports at
hand. Dr Archer, an Obstetrician/Gynaecologist, asserted that there
was a sentinel type
of event which could not have left a ‘footprint’.
Conversely, Professor Cooper, Paediatrician/ Neonatologist, initially
opined
that ‘[i]t therefore seems that the neonatal encephalopathy
that … manifested was due to a preceding severe hypoxic ischaemic
insult…. [T]here did not appear to be any subsequent sentinel event
… the acute profound hypoxic ischaemic brain injury occurred
during
the 45-50 minutes prior to delivery’.
[34]
The report of Paediatric Neurologist, Dr Janse
van Rensburg, revealed that there was no sentinel event. She
concluded that possibilities
for the neonatal encephalopathy and the
subsequent neurological deficit could be a case of:
‘hypoxic-ischaemic brain injury suggested
by the MRI report;
Metabolic-genetic disorders, either mimicking hypoxic-ischaemic
injury, or predisposing the brain to, and/or causing
this kind of
injury. Other causes that need to be excluded are toxic and infective
conditions, etc. There is no evidence on the MRI
[scan] that the
latter played a role.’
[35]
Dr Janse van Rensburg was also adamant that
there was no sentinel event. She opined that the hypoxic ischaemic
injury was likely to
have occurred at some point or points during the
pregnancy rather than in labour.
[36]
Having received the report from Dr Janse van
Rensburg, Professor Cooper concluded that ‘[i]t is probable that
[SZ] suffered an injury
to the periventricular white matter prior to
34 weeks gestation resulting in the spastic diplegia component of the
brain injury and
then a second brain injury of the acute profound
type during the last 45-50 minutes prior to delivery’.
[37]
I am therefore persuaded that this is a matter
that ought to proceed to trial as there are conflicting expert
opinions and inconsistent
views which require ventilation with the
aid of oral evidence. It therefore appears that on the conspectus of
the evidence before
it, the court a quo misdirected itself by
concluding that based on the medical and expert reports, there was
nothing to demonstrate
that the appellant had reasonable prospects to
succeed with her daughter’s claim.
[38]
A further factor which must also be considered in
this matter is that the respondent also contributed to the delay that
occurred.
In about November/December 2013 the appellant requested
hospital records from the hospital. The hospital could not provide
her with
the required documents as the hospital staff was unable to
locate her file. When she returned to the hospital some six months
later
her file was still missing and the only documents the hospital
was able to trace were those that were in her outpatient file which
confirmed her admission and the child’s diagnosis. The delay and
the reasons therefor are not disputed by the respondent.
[39]
Having regard to the respondent’s own delay and
the lack of explanation for it, in my view the respondent’s
contention that it
has suffered unreasonable prejudice as a result of
the appellant’s delay is opportunistic and self-serving.
[40]
It must be borne in mind that this is a claim for
a minor and as such, until it prescribes, there would be every
opportunity for the
minor’s claim to be pursued. This is yet a
further indication that there can be no unreasonable prejudice
suffered by the respondent.
[41]
For the reasons alluded to above, I am satisfied
that the appellant established the requirements as set out in s 3(4)
for the granting
of condonation. Consequently, the court a quo erred
when it refused the application for condonation in terms of s 3(4)
and the appeal
must succeed.
[42]
Turning to the issue of costs, as it has been
determined that the appellant should have been granted condonation,
the appropriate
order was for costs to follow the result. However, in
this case the appellant and her attorneys were both far too
lackadaisical,
and at some stage the appellant even gave up on this
case. Thankfully, she came to her senses for the sake of the minor
child. The
respondent’s opposition was not unreasonable. In these
circumstances, the appropriate order would be that there be no order
as
to costs in this court and the court a quo was correct in ordering
no costs.
[43]
In the result the following order is granted:
1
The appeal is upheld with no order as to costs.
2
The order of Mpumalanga Division of the High Court, Mbombela is set
aside
and is replaced with the following order:
‘
The
application for condonation for the late service of the notice in
terms of s 3 of the
Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002
is
granted with no order as to costs.’
W HUGHES
JUDGE OF APPEAL
Appearances
For
appellant:
Adv. G Skakoane SC and Adv.  DD Mosoma
Instructed
by:
Denga Inc. Mbombela
Matsepes
Inc., Bloemfontein
For
respondent:
Adv. H Van Eeden and Adv. Cassim
Instructed
by:
Adendorff Theron Attorneys, Mbombela
Lovius
Block Inc.,Bloemfontein.
[1]
‘(4)
(a)
If an organ of state relies on a creditor’s failure to serve a
notice in terms of subsection (2)
(a)
,
the
creditor may apply to a court having jurisdiction for condonation of
such failure.
(b)
The court may grant an application referred to in paragraph
(a)
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.
(c)
If an application is granted in terms of paragraph
(b)
, the
court may grant leave to institute the legal proceedings in
question, on such conditions regarding notice to the organ of
state
as the court may deem appropriate.’
[2]
Mothupi v Member of
the Executive Council, Department of Health Free State Province
[2016] ZASCA 27; [2016] JOL 35575 (SCA).
[3]
Ibid para 12.
[4]
Madinda
v Minister of Safety and Security
[2008]
ZASCA 34
;
2008 (4) SA 312
(SCA) para 8 (
Madinda
).
[5]
Ethekwini Municipality
v Crimson Clover Trading 17 (Pty) Ltd t/a Island Hotel
[2021] ZASCA 96
;
[2021] JOL 50669
(SCA)  (
Ethekwini
Municipality
) para 8;
Minister of
Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[2010] ZASCA 27
;
[2010] 3 All SA 537
(SCA) para 11.
[6]
Ethekwini
Municipality
para
10;
Mulaudzi
v Old Mutual Life Assurance Company South Africa Ltd
[2017] ZASCA 88
;
[2017] 3 All SA 520
(SCA); para 26.
[7]
Madinda
para
10.
[8]
Ibid
para 12.
[9]
Section
12(3)
of the
Prescription Act 68 of 1969
-
‘
A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.’
[10]
Mabinda
para
12.
[11]
Para 40 of the court a quo judgment.
[12]
Footnote 4.