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2024
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[2024] ZAECMHC 21
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MEC for Department of Health Eastern Cape v Sofuthe (2728/19) [2024] ZAECMHC 21 (25 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Not
Reportable
CASE
NO: 2728/19
In
the matter between:
MEMBER
OF THE EXECUTIVE
COUNCIL
FOR THE DEPARTMENT
OF
HEALTH, EASTERN
CAPE
Applicant/Defendant
and
NONCEBA
SOFUTHE
obo
ASEMAHLE
SOFUTHE
Respondent/Plaintiff
Neutral
citation:
Member
of the Executive Council For The Department of Health, Eastern
Cape v N. Sofuthe obo A. Sofuthe
(Case
no 2728/19)
Coram:
NHLANGULELA
DJP
Delivered
:
25
April 2024
Summary:
Application
for condonation granted - application for leave to appeal refused -
applicant to pay costs.
ORDER
It
is ordered that:
(a)
The
application for condonation for the late filing of the application
for leave to appeal the judgment of 4 July 2023 is granted.
(b)
The
application for leave to appeal the judgments of 4 July 2023 and 20
July 2023 are refused.
(c)
The
applicant to pay the costs of the applications for condonation and
leave to appeal, including the costs of two counsel.
JUDGMENT
NHLANGULELA
DJP
[1]
These
proceedings concern two applications. They are the application for
leave to appeal the judgments delivered on 4 July 2023
and 20 July
2023; and the application for condonation of a delay in bringing an
application for leave to appeal the judgment of
4 July 2023. The
judgments were granted in favour of the respondent.
[2]
The
application for leave to appeal was opposed strenuously. The
application for condonation is not opposed. I am satisfied that
it is
in the interest of justice to grant the application for condonation
for the late filing of the application for leave to appeal
the
judgment on separation and amendment that was delivered on four 4
July 2023. Accordingly, the condonation will be granted.
The costs
will follow the result of the application for leave.
[3]
The
first judgment concerned the applicant’s application for leave
to separate the determination of the issue of quantum from
the
determination of the newly pleaded defences. The second concerned the
assessment of the amount of damages to be paid by the
applicant, the
merits of the action having been settled on the basis that the
applicant was 100% liable to pay damages that arose
from negligent
medical treatment of the respondent and her minor child.
[4]
The
relief that the applicant had brought was two pronged. It had sought
leave to amend the plea to introduce the DZ defences
[1]
(the Public Health and Instalment Payment defences) so that the
compensation awarded to the respondent is reduced to the extent
that
the applicant would provide treatment at the public hospital and/or
liquidate the amount of proven damages in instalments
over some time.
[5]
It
is necessary to set out here-under the provisions of paragraph 1 of
the order that was granted on 20 July 2023. It reads:
“
Amounts
that were agreed between the parties:
(a)
Occupational
therapy
R 3 663 100
(b)
Physiotherapy
R 1 285 522
(c)
Orthotist
R 1 501 778
(d)
Speech
therapy
R 890,931
(e)
Dietician
R 274 942
(f)
Dentist
R 253 547
(g)
Neurology
R 221 184
(h)
Orthopaedic
joints
R 322 775
(i)
Educational
psychology
R 345 632
(j)
Loss
of earning capacity
R 1 175 947
(k)
General
damages
R2 200 000
Plus
those amounts not agreed to:
(l)
For
the caregiver and a relief attendant employed to care for the minor
child from age 7 to 18 years; including three (3) caregivers
employed
to care for the minor child from age 19 years until the end of his
lifetime-R9 452 410
(m)
For
housing-
R 962 000
Grand
Total
R22 549 768.”
[6]
The
above-quoted paragraph 1 of the order
shows
that a large chunk of damages had been agreed to between the parties
at the time when evidence was led towards the assessment
of a
reasonable amount for the heads of damages in subparagraphs (l) and
(m) of the order. The issue of liability under those heads
had
already been agreed to based on actuarial reports in exhibits “E”
and “F” that had been prepared by
expert witnesses for
the plaintiffs (respondent) and defendant (the applicant)
respectively. In other words, the court was called
upon to only
determine the reasonableness of the amount of damages to be awarded
in respect of caregiving and housing. Based on
this, the application
for leave to appeal is premised on the award in the sum of
R10,414,410 out of the total amount of R22,549
768.
[8]
In
deciding the amount of damages payable for caregiving and housing, I
did what was asked of me to do. That is, to assess the damages
based
on the agreed amounts and those amounts that were proved by oral and
documentary evidence; hence the judgment that I delivered
on 20 July
2023. When doing this the notice to amend had been issued, but the
prosecution thereof was not in sight.
[9]
The
application for leave is based on the main ground that since the
delivery of the judgment of the Constitutional Court in the
case of
DZ
the court was enjoined to grant the application for
separation and amendment. For not granting it, there is a reasonable
prospect
that the judgment of 4 and 20 July 2023 will be set aside on
appeal. The opposing arguments that leave be refused as granting it
will cause an injustice is premised on the following reasons,
inter
alia
:
(a)
The
applicant is guilty of inordinate delay in prosecuting the
application for separation and amendment.
(b)
A
separate determination of the DZ defences (the particulars of which
remain unknown) on the face of the agreed award of damages
in
subparagraphs (a) to (k) cannot be workable as that will amount to a
rescission of the existing judgment and irremediable prejudice
to the
respondent.
(c)
The
award of damages for caregiving and housing was assessed reasonably.
[10]
In
this matter, summons were issued on 1 August 2019. From that date up
to and including the date of delivery of judgment on 20
July 2023,
the application for amendment was never pursued beyond the mere
filing of a notice to amend. In the absence of any hurdle
being
pointed out as standing in the way of the bringing of the application
to amend, it cannot be said that a person other than
the applicant
itself is guilty of inordinate delay. The final decision on the
contested issues of caregiving and housing, together
with the
agreement on other aspects of quantum as described in subparagraphs
(a) to (k) put paid to litigation between the parties
on both issues
of merits and quantum. With ‘horses having bolted’, it
would be unreasonable, inconvenient and costly
to cancel the
judgments and restart a trial on issues that are no longer in
contention.
[11]
The
submission that the case of
Mashinini
v
MEC
for Health, Gauteng Provincial Government
[2]
was not applied in this case is misplaced. It is applicable, but
subject to the qualification in
The
Member of the Executive Council for Health of the Gauteng Division
Government v PN
[3]
that applications for leave to introduce the DZ defences must be
carefully pleaded and proved by evidence. For such defences to
be
entertained in the context of developing the common law, the
provisions of Rule 28 of the uniform rules and the stringent legal
principles evolved by the courts around that rule over the years must
be applied.. So, the amendment of pleadings to introduce
the DZ
defences cannot override or suspend the application of the rules of
court. In this case, the applicant ignored the principle
that,
inter
alia
,
an amendment of pleadings ought to be done within a reasonable time,
and a delay in making an application for it must be explained
satisfactorily.
[12]
The
attack against the judgment on quantum does not have merit. The
applicant did not only concede liability, but it went further
to
commit to the amount of damages to be paid by it in respect of the
heads of damages listed in (a) to (k) of the order. It went
further
to commit to such damages as would be fixed by the court at the trial
in respect of caregiving and housing issues that
were, strictly
speaking, inextricably linked to the heads of damages that were
already agreed to. Proper evidence led and assessed
on a balance of
probabilities guided the court in arriving at the amount of damages
as it did. I remain persuaded that the applicant’s
application
is a sham. It is a lame excuse designed to masquerade the agreement
it made to pay as a refusal of access to the court
to introduce DZ
defences. In any event, the DZ defences were not pleaded and proved
by the applicant in this case.
[13]
There
is merit in the opposition to the application for leave to appeal. In
terms of
s 17(1)(a)(i)
and (ii) of the
Superior Courts Act 10 of
2013
, for the appellant to succeed in the application for leave to
appeal, the grounds on which the application is based must show a
reasonable prospect of success; or show a compelling reason why the
appeal must be heard. On the consideration of the fact that
neither
of the two tests have been met in these proceedings, the application
for leave to appeal must fail.
[14]
T
he
following order is granted:
(a)
The
application for condonation for the late filing of the application
for leave to appeal the judgment of 4 July 2023 is granted.
(b)
The
application for leave to appeal the judgments of 4 July 2023 and 20
July 2023 is refused.
(c)
The
applicant to pay the costs of the applications for condonation and
leave to appeal, including the costs of two counsel.
ZM
NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
Appearing
for the applicant/defendant:
Advocate Van der
Linde SC
Instructed
by:
Norton Rose Full Bright South Africa Inc
c/o Smith Tabata
Attorneys
Mthatha.
Appearing
for the respondent/plaintiff:
Advocate Dugmore
SC
With:
Advocate Sambudla
Instructed
by:
M. Dayimani Inc
Mthatha.
[1]
The
defences are enunciated in
MEC
for Health and Social Development, Gauteng v DZ obo WZ
2018
(1) SA335 (CC) (abbreviated as DZ).
[2]
Mashinini
v
MEC
for Health, Gauteng Provincial Government
(Case No:33/2021)[2023] ZASCA 53 (18 April 2023)
[3]
The
Member of the Executive Council for Health of the Gauteng Division
Government v PN
(CCT
124/20)
[2021] ZACC 6
;
2021 (6) BCLR 584
(CC) (1 April 2021 at para
[26].