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[2012] ZAECMHC 17
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Mbodla v MEC for Health, Eastern Cape (2701/11) [2012] ZAECMHC 17 (13 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : MTHATHA
CASE NO. 2701/11
In the matter between:
FEZA MBODLA
...................................................................................
Plaintiff
And
MEC FOR HEALTH, EASTERN CAPE
.......................................
Defendant
JUDGMENT
GRIFFITHS, J.:
[1] By way of a summons issued on 1 November 2011, the
plaintiff sued the defendant for damages arising from breach of
contract,
alternatively delictual damages arising from the alleged
negligent conduct of servants of the defendant. To this the defendant
has raised two special pleas, the first being non-compliance with
section 3 of Act 40 of 2002 ("the Act") and the second
being one of prescription.
[2] The first of these two pleas provoked the present
interlocutory application which initially sought an order to the
effect that
the applicant's non-compliance with section 3(2)(a) of
the Act be condoned, together with ancillary relief. However, when
the matter
came before me as an opposed application, Mr. Dugmore, who
appeared for the plaintiff, moved an application for an amendment of
the orders then prayed which application was not opposed by Mr.
Dukada SC (who, together with Mr. Kunju, appeared for the defendant).
The amendment was accordingly granted. With such amendment, the
orders sought are:
"1. That the Plaintiff is hereby declared to have complied with
the notice requirements contemplated in Section 3(1)(a) read
with
Section 3(2)(a) of the Limitation of the
Institution of Legal
Proceedings Against Certain Organs of State Act No. 40 of 2002
in
respect of his claim under Case No. 2701/11
2. Alternatively, and in the event that it is held that the Plaintiff
has not so complied, that Plaintiff's non-compliance with
Section
3(1)(a)
read with
Section 3(2)(a)
of the Limitation of the
Institution of Legal Proceedings Against Certain Organs of State Act
No. 40 of 2002
in respect of his claim under case No. 2701/11 is and
be condoned.
3. The Defendant be ordered to pay the costs of this application
together with the reserved costs occasioned by the postponement
on 19
October 2012.
4. Further and/alternative relief."
[3] The application is opposed by the defendant who has
not filed an answering affidavit but has rested his case on legal
argument
as formulated in a notice in terms of
Rule 6(5)(b)(iii).
In
this notice the defendant has raised the arguments that the
plaintiff’s claim has prescribed and that the grounds advanced
the by the plaintiff in his founding affidavit do not exist in law.
The defendant has contended in this regard that the debtor
and the
full facts giving rise to the plaintiff's claim became known to the
plaintiff as early as 25 June 2006, that is the day
upon which he
received medical treatment at Bedford Hospital. In addition, the
defendant has raised the question of non-compliance
with the relevant
provisions of the Act.
[4] The essence of the plaintiff's version as set forth
in his founding affidavit may be summarized as follows: as a
consequence
of an injury he sustained in a motor vehicle accident he
was admitted to the Nelson Mandela Academic Hospital for treatment.
This
apparently occurred on 25 June 2006. During April 2011 he
consulted with his attorney to whom he "
conveyed the facts
which gave rise to the incident
". On having received these
instructions, his attorneys obtained a medico/legal opinion from one
Dr. Olivier, a copy of which
is attached to the founding affidavit.
This report was received on 2 August 2011. The defendant has, in his
aforesaid notice, objected
to the use of this document by the
plaintiff on the basis that it was not confirmed under oath by the
doctor. In my view, this
is of no consequence. The plaintiff has
confirmed under oath that he received such an opinion and I am of the
view that I am accordingly
entitled to take into account, for the
purposes of this application, the content of such report. This is
particularly so in view
of the fact that it is a question of the
plaintiff's knowledge, and when he acquired such knowledge, that is
in issue in this matter.
[5] In his founding affidavit the plaintiff stated:
“
Until I was advised by my Attorney under
the circumstances I will set out below, I did not realize that I may
have a claim for damages
against the Respondent. I also did not know
that, in terms of the Act, a person is not entitled to institute a
damages action against
the Respondent unless notice of such intended
action had been given within certain prescribed time limit (sic)."
[6] He was advised by his attorney to institute action
and to, thereafter, invite the defendant to consent to such
institution despite
the late notification. His attorney accordingly,
and by way of a letter dated 2 June 2011, invited the defendant so to
consent.
By way of a further letter, also dated 2 June 2011, notice
was served on the respondent purportedly in terms of the provisions
of the Act.
[7] From the report of Dr. Olivier it appears that the
plaintiff was initially admitted to the aforementioned hospital but
was referred
to the Bedford Orthopedic Hospital, although the
clinical notes that he relied on from the hospital did not apparently
confirm
that he was in fact so referred. The plaintiff suffered a
proximal tibial plateau fracture consequent upon a motor vehicle
accident.
He was apparently treated conservatively and his leg was
placed in plaster. He was informed that he should return to the
clinic
some 6 weeks later.
[8] On 19 July 2006 a further entry was made but it was
not clear as to whether X-rays were requested. A further entry was
made
in the clinical notes on 2 August 2006 indicating that the
applicant was apparently then referred for X-rays. The final entry in
the hospital's clinical notes was made on 23 August 2006 and
indicated that the plaintiff was, on that date, referred for
physiotherapy.
[9] According to Dr. Olivier, when he examined the
plaintiff he ascertained that he could not stand for long periods of
time and
was unable to walk fast. He furthermore could not perform
activities such as squatting or negotiating uneven surfaces. He
stated
further that "
The patient furthermore gives the
history that he is aware that there is a deformity present of his
left leg since the cast was
removed
." He noted that there
was a 1.5 cm shortening of the left leg and that there was wasting of
the quadriceps muscles. The doctor
added:
"
It is my opinion that the patient sustained
a split condylar fracture of the medial tibial plateau. The fracture
was produced by
a varus force and the fracture can be described as an
avulsion fracture. Due to a valgus force avulsion occurred of the
medial
tibial plateau causing a fracture which extends from the
lateral aspect of the tibial spine and extends inferiorly to the
junction
of the medial metaphysis and diastasis. It should be noted
that this fracture was not a comminuted fracture.
It is my opinion that the patient should have undergone an open
reduction and internal fixation. If an adequate open reduction
and
internal fixation had been performed the injury would have been
associated with a favourable outcome. It should be noted that
this
was a simple split type of fracture without comminution and good to
excellent results are reported in up to 80%."
[10] The relevant portions of section 3 of the Act are
the following:
“
3 Notice of intended legal proceedings to
be given to organ of state
(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; or
(b) the organ of state in question has consented in writing to the
institution of that legal proceedings-
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 debt became due, be
served on the organ of state in accordance with section 4
(1); and
briefly set out-
the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of the
creditor.
(3) For purposes of subsection (2) (a)-
(a) a debt may not be regarded as being due until the creditor has
knowledge of the identity of the organ of state and of the facts
giving rise to the debt, but a creditor must be regarded as having
acquired such knowledge as soon as he or she or it could have
acquired it by exercising reasonable care, unless the organ of state
wilfully prevented him or her or it from acquiring such knowledge;
and
(b) a debt referred to in section 2 (2) (a), must be regarded as
having become due on the fixed date.
(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-
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."
[11] It is common cause in this matter that the
prescriptive period applicable to this debt is 3 years from the date
upon which
the debt became due. The plaintiff however relies on the
provisions of section 12(3) of the Prescription Act
1
.
The relevant provisions of that Act are as follows:
" 12 When prescription begins to run
(1) Subject to the provisions of subsections (2), (3), and (4),
prescription shall commence to run as soon as the debt is due.
(2)….
(3) 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."
[12] As stated earlier, the plaintiff now seeks a
declarator to the effect that he has indeed complied with the notice
requirements
contemplated in the Act. He seeks this order on the
basis that he only acquired knowledge of the facts giving rise to the
debt
during April 2011 or on 2 August 2011 when he received the
opinion from Dr. Olivier. Because section 3(2)(a) of the Act requires
such notice to be served on the defendant within 6 months "
from
the date on which the debt became due
",
it is necessary to determine when, for the purposes of the Act, the
debt became due. This, in turn, requires an examination
of the
plaintiff's allegations that he only became possessed of the
requisite knowledge of the facts giving rise to the debt on
one or
other of the above dates.
[13] It should be noted that neither of the special
pleas are before me. What is before me is a request for a declarator
that the
plaintiff has complied with the notice provisions as
contained in the Act. If I hold in favour of the plaintiff in this
regard,
this would clearly have the effect of defeating the first
special plea. Whether such a finding would have the effect of
defeating
the second special plea is a matter with which I am not
concerned. However, such a finding, based as it must be on a
conclusion
that the plaintiff only acquired the requisite knowledge
of the facts of the matter on the above-mentioned dates resulting in
the
debt falling due on one or other of them, would surely have the
effect of undermining the second special plea due to the similarity
of the wording in section 3(3)(a) of the Act and section 12(3) of the
Prescription Act
2
.
[14] Because of the similarity of the wording between
these two subsections, in my view the cases which deal with section
12(3)
of the Prescription Act must be regarded as being highly
persuasive when dealing with section 3(3)(a) of the Act.
[15] In this regard Mr. Dukada has relied heavily on the
case of
TRUTER AND ANOTHER v DEYZEL
3
.
In that case the plaintiff underwent eye surgery during 1993 as a
result of which he suffered a complete loss of vision in his
right
eye and ultimately lost the eye itself. Because, as at the time of
the operations in 1993 he had already lost his left eye,
the
plaintiff was thus rendered totally blind.
[16] During 1994 he made a complaint to the Medical and
Dental Council in this regard. He complained of the conduct of the
medical
practitioners concerned and requested that an investigation
be held into the matter as, as he stated, "
I
feel there was no need for five operations, plus all the pain and
suffering and unnecessary sums of money for one cataract
".
During 1995 he appointed attorneys to assist him in investigating and
prosecuting a malpractice suit against the doctors
concerned. During
the ensuing years he obtained, in conjunction with his attorneys,
various medical reports all of which, in effect,
indicated that there
was no basis for such an action. The last of these reports was
obtained from a Professor Stulting and was
dated 7 June 1999.
[17] Undaunted, the plaintiff in that matter proceeded
to obtain a further report from a certain Dr. Steven who concluded
that there
was negligence on the part of the doctors who performed
the eye surgery. On the basis of this report, summons was issued. Not
surprisingly,
a special plea of prescription was taken by the
defendant and, because the plaintiff relied on the provisions of
section 12 of
the Prescription Act, the sole issue which came before
the court was as to the time when prescription started to run in
respect
of the plaintiff's claim for damages. The crisp question was,
accordingly, as to whether or not the plaintiff in that matter "
had
actual or deemed knowledge of "the facts from which the debt
arises", as required by s 12 (3), prior to 17 April 1997
."
4
[18] The SCA found in these circumstances that all the
relevant facts and information in respect of the operations performed
on
the plaintiff in that matter:
"were known, or readily accessible, to him and his legal
representatives as early as 1994 or 1995. Neither Deysel nor Mrs.
Pienaar was able to point to any new
fact
which was given to
either Dr. Lecuana or Dr. Steven, which had not been presented to the
previous medical experts for their opinions
and which had not been
known or readily accessible to Deysel and his representatives before
17 April 1997 (i.e. more than 3 years
before the date on which he
instituted action). Indeed, the ‘negative indicators’,
which apparently, eventually, led
Dr. Steven to conclude that there
had been negligence on the part of Drs. Truter and Venter, were dealt
with in the reports of
medical experts previously consulted."
5
[19] The SCA thus concluded as follows:
"Thus, neither Dr. Lecuana nor Dr. Steven revealed or furnished
any new
facts
to Deysel: they merely advanced an opinion, in
the form of a conclusion that there had been negligence, which
opinion was based
on the same facts which had been available prior to
17 April 1997 and which had been furnished to the other experts."
6
[20] Mr. Dukada has submitted that I should disregard
the case of
SIBIA v THE PREMIER OF THE
PROVINCE OF KWAZULU NATAL
7
on which Mr. Dugmore has placed much reliance in this
matter. He has made this submission on the basis that the Sibiya case
was
decided some two years after the Truter case was reported and yet
no reference was made to it in the Sibiya case.
[21] In the Sibiya case the plaintiff underwent a
caesarean section during the course of which a needle was left in her
abdomen.
This procedure was undertaken on 22 November 1995. The
summons was served on 22 November 2005, clearly more than 3 years
after
the procedure complained of. In it the plaintiff claimed
damages against the servants of the defendant. Similar special pleas
were
taken in that matter to those taken in this. The plaintiff
testified that after she had been discharged from the hospital she
had
experienced vaginal bleeding on various occasions and had sought
medical assistance from the very same hospital that had undertaken
the procedure. Although X-rays were, on occasion, taken, she was
never shown them nor was she informed as to the cause of the
bleeding. She was at no stage advised that there was a needle in her
abdomen. During June or July 2004 further X-rays were taken
and she
was informed that she should undergo a further operation. She refused
to do so. It was thereafter that she went to a different
hospital
and, after another set of X-rays were taken, she was advised that
there was a needle in her abdomen.
[22] On the evidence the court concluded that the
defendant had failed to prove that the plaintiff had actual or deemed
knowledge
of the identity of the debtor and of the facts which gave
rise to the debt before 22 July 2005. The learned judge stated:
"There is no suggestion that she suspected or could have
suspected that there was a needle in her abdomen, not is it suggested
that she could reasonably have suspected that."
8
[23] In the present matter it is so, as has been
submitted by Mr. Dukada, that there is a dearth of information as to
the plaintiff's
situation from August 2006 until he approached his
attorney in April 2011. One might have expected him to have explained
the nature
and extent of the pain he suffered during the course of
this period of time and whether or not he had received any form of
medical
treatment. It is also so that Dr. Olivier has stated that
when the plaintiff presented to him, the plaintiff indicated his
awareness
of a deformity of his leg subsequent to the removal of the
plaster cast.
[24] On the other hand, however, there is no denial of
the facts as set forth by the applicant in his founding affidavit. On
his
evidence, he had no inkling whatsoever prior to receipt of the
report from Dr. Olivier as to the facts relating to the malunion
of
the bones in his lower leg as a consequence of a failure by the
hospital staff to undertake the proper procedure. This, in my
view,
is not a legal conclusion but is a factual situation. There is
nothing to suggest that the plaintiff should, having exercised
reasonable care, have come to know of the facts giving rise to the
negligent conduct on the part of the hospital staff. The deformity
of
his leg and the onset of pain over a period of some years may well
have indicated to him that he might be suffering from a natural
consequence of the injury which he sustained despite the conservative
procedures carried out at the hospital. There is no indication
however that he ought to have realized that this deformity and the
onset of pain over the intervening years was indicative of anything
less than optimal care having been administered to him by the
hospital staff.
[25] This is compounded by the fact that the hospital
appears to have kept very cryptic and unsatisfactory clinical notes
as to
what diagnosis was indeed made and what treatment was
administered to the plaintiff on the various occasions he attended
the hospital,
as reflected by Dr. Olivier. In this regard Dr. Olivier
stated:
"
The fracture was not adequately described
in the clinical notes. It was simply described as being a fracture of
the proximal left
tibial plateau. An adequate diagnosis was therefore
not made."
[26] In many other respects the doctor has criticized
the sparse and inadequate note taking by the hospital staff and the
fact that
the plaintiff’s condition was not followed up on at
regular intervals. Mention was also made in the report of the fact
that
the clinical notes make no mention as to whether or not X-rays
were requested. In Dr. Olivier's view, had such X-rays been requested
it would have been clear that there was a significant inferior
displacement of the bone.
[27] In my view, this matter is distinguishable from the
Truter matter in that it is clear from the report in that matter that
the
plaintiff was aware, or at least believed, from the outset that
he had received less than adequate treatment. Hence, very shortly
after the procedures, he made the complaint to the Medical and Dental
Council. Furthermore, after the rejection by the Medical
and Dental
Council of his complaint, he proceeded vigorously with his quest to
obtain a medical opinion which was favourable to
his cause. It is
quite understandable in these circumstances as to why the SCA
concluded that he was fully aware of the facts of
the matter and the
identity of the debtor at a time shortly after the impugned
procedures had been concluded.
[28] The present matter is very different. The hospital
treatment given the plaintiff and the evidence (in the form of the
clinical
notes) as to such treatment is clearly lacking in the
extreme and unlikely to inform a layman of the fact that the
plaintiff received
less than optimal treatment. There is furthermore
nothing to suggest that during the period after the plaster cast was
removed
and the receipt of the report from Dr. Olivier, the plaintiff
ought to have been alerted to the fact that he had not received
optimal
treatment. To my mind, the fact that he experienced
progressive pain and was aware of the deformity, together with his
difficulty
in squatting etc., could not have been sufficient, without
more, to have indicated to him, as a layman, that sub-optimal
treatment
had been administered.
[29] This case is, in my view, akin to the Sibiya
matter. Even if the Truter case was not dealt with by Moleko J in
that matter,
I do not see that it can make any difference as, as I
have indicated, it is clearly distinguishable on the facts.
[30] In my judgment the debt became due for the purposes
of the Act at the earliest when the plaintiff consulted with his
attorney
and was advised that he had a claim, namely during April
2011. It being common cause that the plaintiff, through his attorney,
delivered a letter to the defendant on or about 2 June 2011 which, in
all other respects, complied with the provisions of the Act,
I am of
the view that there has been due compliance with the Act. In the
circumstances, the plaintiff is entitled to the declaratory
order.
[31] With regard to the question of costs which were
reserved on 19 October 2012, the parties have agreed that these costs
are to
be regarded as costs in the cause.
[32] The following order will accordingly issue:
1. The Plaintiff is hereby declared to have complied
with the notice requirements contemplated in Section 3(1)(a) read
with Section
3(2)(a) of the Limitation of the
Institution of Legal
Proceedings Against Certain Organs of State Act No. 40 of 2002
in
respect of his claim under Case No. 2701/11;
2. The defendant is ordered to pay the costs of this
application;
3. The costs occasioned by the postponement on 19
October 2012 and which were reserved, are to be costs in the cause.
JUDGE OF THE HIGH COURT
HEARD ON : 27 November 2012
DELIVERED ON : 13 December 2012
COUNSEL FOR PLAINTIFF : Mr Dugmore
INSTRUCTED BY : Nonxuba Inc.
COUNSEL FOR DEFENDANT : Mr Dukada Sc
: with Mr Kunju
INSTRUCTED BY : State Attorney
1
No.
68 of 1969
2
Sibiya
v The Premier of the Province of KwaZulu-Natal
[2008] 1 All SA 295
(N) at paragraphs 40 and 41
3
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA)
4
Truter's
case at paragraph 12
5
Truter
at paragraph 25
6
Truter
at paragraph 26
7
Supra,
footnote 2
8
Sibiya
at paragraph 34