Summary of Judgment

1. Introduction

The proceedings were an application for leave to appeal brought in the South Gauteng High Court, Johannesburg. The applicant was the Premier of the Gauteng Province (described in the judgment as the first defendant), and the respondents were Shabbir Carrim (the plaintiff in the main action) and Dr Gregory Basiewicz (the second defendant in the main action).

The application sought leave to appeal to either the Supreme Court of Appeal or a Full Bench of the South Gauteng High Court against two aspects of a prior judgment and order delivered on 7 November 2008. Those aspects were (i) the finding that the Premier was vicariously liable to the plaintiff for the negligent conduct of the second defendant, and (ii) the costs finding and order that the Premier must pay 30% of the second defendant’s trial costs.

The general subject-matter of the dispute, as it emerged from the leave-to-appeal judgment, concerned the application of the common-law test for vicarious liability in deviation cases (developed in light of constitutional considerations), and a challenge to the allocation of costs arising from the trial proceedings, including whether alleged improper conduct and alleged procedural unfairness regarding costs should have affected the costs order.

2. Material Facts

The court dealt with a limited factual matrix because the application was confined to prospects of success on appeal against discrete findings already made in the main judgment. The application targeted (i) vicarious liability and (ii) part of the trial costs order.

A significant disputed factual theme underlying the vicarious liability issue was an alleged “private arrangement” between the plaintiff and the second defendant. The Premier’s grounds for leave to appeal were premised on reliance upon that alleged arrangement, including contentions relating to the plaintiff’s state of mind, belief, or awareness.

In the earlier judgment (which the court referred to without repeating), the alleged private arrangement was rejected in so far as it related to the plaintiff’s retroperitoneal surgery and his admission to Chris Hani Baragwanath Hospital from 20 to 27 May 2002. The court treated the rejection of that arrangement (for that admission and surgery) as a settled factual foundation for purposes of the leave-to-appeal application, noting that the relevant facts and probabilities had been extensively dealt with in the main judgment.

For purposes of the costs-related grounds advanced in the leave-to-appeal application, the court accepted that, even on the Premier’s own approach, any such alleged arrangement could at best have tainted only the plaintiff’s first admission to Chris Hani Baragwanath Hospital during 1 to 4 May 2002 for a radical orchiectomy, whereas the delictual conduct for which liability was claimed related to the later retroperitoneal surgery and admission. In relation to the later surgery (performed on 21 May 2002), the court treated the second defendant’s conduct as occurring within the course and scope of his employment and duties in the treatment he provided and in performing the surgery.

As to the costs complaint that the Premier was not afforded an opportunity to deal with the second defendant’s costs, the court proceeded on the basis that, if such lack of opportunity had existed, the Premier could have invoked the mechanism recognised in authority by making an application within a reasonable time to be heard on costs. The court noted that no such application had been made.

3. Legal Issues

The central legal questions were whether there were reasonable prospects that another court might come to a different conclusion on two issues already determined in the main judgment.

The first was whether the court’s finding of vicarious liability (based on the common-law test applicable to deviation cases, developed in light of constitutional norms) was reasonably open to challenge on appeal, particularly in light of the Premier’s reliance on the alleged private arrangement and related contentions about the plaintiff’s state of mind.

The second was whether the costs order—specifically, the order that the Premier pay 30% of the second defendant’s trial costs—was susceptible to successful appeal, having regard to the Premier’s grounds that (i) it had a public duty to oppose vicarious liability given the plaintiff’s complaints about the arrangement, (ii) the second defendant’s alleged abuse of position should have influenced costs, and (iii) the Premier was allegedly not afforded an opportunity to address the second defendant’s costs.

These issues involved predominantly the application of established legal principles to the facts as found (including facts already determined in the main judgment), together with an evaluation of whether the costs discretion and procedural fairness complaints provided a basis for appellate interference. The leave-to-appeal enquiry was therefore not a re-trial of factual disputes, but an assessment of prospects of success based on the court’s findings and the legal standards governing vicarious liability and costs.

4. Court’s Reasoning

On vicarious liability, the court stated that it had applied the common-law test for vicarious liability in deviation cases as laid down in Minister of Police v Rabie 1986 (1) SA 117 (A) and further developed in K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC), doing so “in the light of the spirit, purport and objects of the Constitution.” The court rejected the Premier’s suggestion that the “usual enquiry” would not suffice, and characterised the Premier’s contentions about the plaintiff’s state of mind and beliefs as resting on the alleged private arrangement.

The court emphasised that the alleged private arrangement had been rejected in the main judgment insofar as it concerned the retroperitoneal surgery and the relevant hospital admission. Given that this was the factual platform on which the vicarious liability analysis rested, and that the underlying factual and probabilistic reasoning had already been extensively addressed in the main judgment, the court considered that repeating the analysis in the leave-to-appeal judgment would serve no purpose.

The court concluded that there was no reasonable prospect that another court might reach a different conclusion on vicarious liability or on the findings made in arriving at that conclusion. The reasoning reflects a view that the Premier’s proposed appeal on vicarious liability largely attempted to re-open factual and probabilistic determinations already made, without demonstrating a realistic likelihood of a different appellate outcome on the established legal test as applied.

On the costs order, the court dealt with each ground advanced in support of leave to appeal.

First, regarding the contention that the Premier had a public duty to oppose the vicarious liability claim in light of complaints about the arrangement, the court reasoned that even if an arrangement existed it could only have tainted the first hospital admission (1–4 May 2002) for the radical orchiectomy. The delictual conduct grounding liability, however, concerned the later retroperitoneal surgery and admission, during which the second defendant acted within the course and scope of employment. On this basis, the alleged public-duty rationale did not provide a persuasive foundation to disturb the costs order linked to the later delictual conduct.

Second, in relation to the argument that the second defendant had abused his position to secure unfair benefits for himself and the plaintiff, the court similarly reasoned that any benefit secured by the second defendant could at best have related to the first admission, not the later surgery. With specific reference to the retroperitoneal surgery, the court held that the second defendant’s subjective intention in recommending and performing the surgery was “not self-directed” and was intended to serve the plaintiff’s interests alone. The court therefore found no basis, on this ground, for an appellate court to interfere with the costs award.

Third, on the complaint that the Premier was not given an opportunity to deal with the question of the second defendant’s costs, the court applied the principle that where a court awards costs against a party without first hearing that party, the award is made on an implied understanding that the affected party may apply within a reasonable time to be heard on costs. The court relied on Union Government v Gass 1959 (4) SA 401 (A) (with reference also to Estate Garlick v C.I.R. 1934 A.D. 499) and further cited Hart v Broadacres Investments Ltd 1978 (2) SA 47 (NPD). The court reasoned that if the Premier maintained it had not been heard, it was open to it to bring such an application after learning of the 30% costs order. Because no such application was made, the court did not accept that this complaint established reasonable prospects of success on appeal.

Synthesising these points, the court held that it was unable to find that the Premier had reasonable prospects of success on appeal against the costs award.

5. Outcome and Relief

The court refused the first defendant’s (the Premier’s) application for leave to appeal.

The court ordered that the Premier pay the plaintiff’s costs of opposing the leave-to-appeal application, including the costs consequent upon the employment of senior counsel. The court further ordered that the Premier pay the second defendant’s costs of opposing the application for leave to appeal.

Cases Cited

Minister of Police v Rabie 1986 (1) SA 117 (A).

K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC).

Union Government v Gass 1959 (4) SA 401 (A).

Estate Garlick v C.I.R. 1934 A.D. 499.

Hart v Broadacres Investments Ltd 1978 (2) SA 47 (NPD).

Legislation Cited

Constitution of the Republic of South Africa, 1996.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that there were no reasonable prospects of success that another court would reach a different conclusion on either (i) the prior finding that the Premier was vicariously liable for the second defendant’s negligent conduct, applying the deviation-case test for vicarious liability developed in line with constitutional norms, or (ii) the prior costs order requiring the Premier to pay 30% of the second defendant’s trial costs.

The application for leave to appeal was accordingly refused, and adverse costs orders were made against the Premier in favour of both the plaintiff (including senior counsel costs) and the second defendant for opposing the leave-to-appeal application.

LEGAL PRINCIPLES

The judgment applied the principle that vicarious liability in deviation cases is assessed using the common-law test formulated in Minister of Police v Rabie 1986 (1) SA 117 (A) and developed in K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC), with the enquiry undertaken consistently with “the spirit, purport and objects of the Constitution.”

In relation to costs procedure, the judgment applied the principle that where a court awards costs against a party without first hearing that party, the costs award is made on the implied understanding that the affected party may apply within a reasonable time to be heard on the question of costs, as recognised in Union Government v Gass 1959 (4) SA 401 (A) with reference to Estate Garlick v C.I.R. 1934 A.D. 499, and as further supported by Hart v Broadacres Investments Ltd 1978 (2) SA 47 (NPD).