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[2024] ZAKZPHC 49
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Sithole v MEC for Health: KwaZulu-Natal (10018/2016P) [2024] ZAKZPHC 49 (26 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 10018/2016P
In
the matter of:
THULANI
ERIC SITHOLE
PLAINTIFF/RESPONDENT
and
THE
MEC FOR HEALTH: KWAZULU-NATAL
DEFENDANT/APPLICANT
ORDER
The
following order is granted:
1.
The application is dismissed with costs.
JUDGMENT
PIETERSEN
AJ:
[1]
The defendant, who is the applicant in this application, seeks an
order declaring
that she is entitled to defend the plaintiff’s
damages claim arising out of the negligence of the defendant’s
employees
in their treatment of the plaintiff, who is the respondent
in this application. In the alternative, the defendant seeks an order
declaring that the plaintiff has abandoned and/or waived his right to
proceed by way of default judgment in respect of the quantum
of his
damages. The defendant, therefore, requests that the matter proceeds
to trial on the issue of quantum and that the plaintiff
be ordered to
pay the costs of the application on a punitive scale. The parties
will be referred to throughout as they are in the
main action.
[2]
The plaintiff was treated at Addington Hospital during December 2015.
It is the plaintiff’s
case that he suffered a serious injury to
his left hand and that the defendant’s employees’ failure
to provide adequate
medical care caused the plaintiff to be
permanently disfigured and unable to use his left hand. As a result
of this injury, the
plaintiff submits that he has been rendered
unemployable and seeks damages suffered from the defendant in the sum
of R4 149 700.
[3]
The matter was defended and both parties delivered their discovery
affidavits. The
plaintiff was dissatisfied with the defendant’s
discovery and delivered notices in terms of rule 35(3) and (6) to
request
certain medical records which, according to the plaintiff,
the defendant had not provided. The exact timeline of the events
pertaining
to the further and better discovery sought by the
plaintiff is not apparent from the papers before me but it is common
cause that
this application culminated in an order granted on 29
November 2017 by Hadebe AJ (as she then was), which reads as follows:
‘
1.
The Respondent’s defence is dismissed with costs.
2.
The Respondent be and is hereby directed to pay the costs of this
application.’
[4]
It is further common cause that the defendant proceeded to deliver a
notice of application
for leave to appeal against the aforesaid order
but the application was never prosecuted for reasons unrelated to
this application.
[5]
Despite the court order striking out/dismissing the defendant’s
defence, the
plaintiff did not proceed to apply for default judgment.
Instead, the plaintiff proceeded to convene a pre-trial conference
which
was held on 7 February 2019. The minutes of this conference
contain the following recordal at paragraphs 3 and 6:
‘
The
matter proceeds for the determination of quantum only, the plaintiff
having obtained a judgment in his favour in respect of
the merits
with the defendant to make payment of 100% of the proven damages.’
[6]
A further pre-trial conference was held on 31 August 2020, and the
parties again recorded
the following at paragraph 3 of the minutes:
‘
The
defendant is liable to make payment of 100% of the plaintiff’s
proven or agreed damages and the matter proceeds for the
determination of the quantum of those damages only.’
[7]
On 20 October 2021, the defendant delivered a request for further
particulars. The
plaintiff also made himself available for various
assessments by the defendant’s expert witnesses for purposes of
the preparation
of medico legal reports. The plaintiff proceeded to
deliver his expert reports and also attended to an amendment of his
particulars
of claim. The matter was then set down for trial on 5
November 2021, on which day the trial was adjourned
sine die
with the defendant directed to make an interim payment to the
plaintiff.
[8]
The matter was then eventually set down for trial again on 13
February 2023 for three
days. Shortly before the trial was to
commence, the plaintiff’s representatives raised the fact that
the defendant’s
defence had been struck out and that the
defendant was thus non-suited.
[9]
The current dispute then arose and the trial was adjourned, with the
defendant directed
to institute this application on or before 20
February 2023.
[10]
The defendant submitted that the court order of 29 November 2017,
striking out its defence, only
related to the issue of liability and
not to the issue of quantum. In the alternative, the defendant argued
that the parties subsequently
entered into a written agreement that
the plaintiff’s claim would be determined in a trial and that
the plaintiff waived
his right to proceed by way of default judgment
in respect of the determination of the quantum of his claim. The
defendant further
submitted that the plaintiff is estopped from
proceeding by way of default judgment, as he had represented to her
that the determination
of the quantum of his damages would be done in
a trial and that she acted on such representations to her detriment.
[11]
The plaintiff submitted that the court order was not limited to
liability only and that the striking
out of the defendant’s
defence included both aspects of liability and quantum. The plaintiff
further submitted that the court
order stands until set aside and
that there is no evidence to show that the plaintiff has abandoned
the order in compliance with
rule 41(2). As a result, so the
plaintiff concluded, the defendant is barred from participating in
the hearing, as her defence
has been struck out and the plaintiff is
entitled to set the matter down as an undefended action in order to
seek default judgment.
[12]
It is immediately apparent from the court order that the defendant’s
defence has been struck
out. The extent of the order is not limited
to the defence on the merits and it follows that the defence in
respect of the quantum
was also struck out.
[13]
It has been held in
Wilson
v Die Afrikaanse Pers Publikasies (Edms) Bpk
that:
[1]
‘
The
striking out of a defendant’s defence is an extremely drastic
step which has the consequence that the action goes forward
to trial
as an undefended matter . . . In the case, if the order were granted,
it would mean that a trial Court would eventually
hear this action
without reference to the justification which the defendant has
pleaded and which it might conceivably be in a
position to establish
by evidence.’
[14]
The court in
Wilson
relied on
Langley
v Williams,
[2]
where the court found that if the defence is struck out, the
defendant cannot appear at the trial and cross-examine the
plaintiff’s
witnesses.
[15]
The recordal by the parties in subsequent pre-trial minutes that the
plaintiff has obtained a
judgment in his favour in respect of the
merits is evidently incorrect. Judgment has not been granted in
favour of the plaintiff
and it is common cause that the defendant has
conceded liability in respect of the merits. However, it is possible
that the reference
in the pre-trial minutes to the plaintiff having
obtained judgment in his favour may be to the order striking out the
defendant’s
defence. Regardless, the inaccurate recordal of the
factual position in the pre-trial minutes cannot restrict or amplify
the order
of 29 November 2017. It, therefore, remains that the
defendant’s defence on the merits and quantum was struck out.
[16]
The defendant’s reliance on a written agreement that the
plaintiff’s claim will be
determined in a trial is without
merit. In this regard, the defendant relies on the minutes of the
pre-trial conference held on
7 February 2019. As indicated above, the
minutes incorrectly record that judgment had been granted in favour
of the plaintiff in
respect of the merits and that the matter would
proceed for the determination of quantum only. The defendant suggests
in her founding
affidavit that the written agreement also provided
for an undertaking by the plaintiff that he would not bring an
application for
default judgment. However, no such undertaking is
apparent from the pre-trial minutes. The plaintiff clarifies the
position in
his answering affidavit and indicates that judgment has
not been obtained in respect of the merits as the defendant has
conceded
the issue of liability.
[17]
The plaintiff further points out, correctly, in his answering
affidavit that the alleged agreement,
as relied on by the defendant,
was not expressly recorded in the pre-trial minutes.
[18]
In the circumstances, I am unable to find that a written agreement
exists where the parties agreed
that the plaintiff’s claim
would be determined in a trial.
[19]
The defendant further submitted that the plaintiff waived his right
to proceed by way of default
judgment in respect of the issue of
quantum. In support of this argument, the defendant submitted that
the plaintiff proceeded
to convene two pre-trial conferences and that
the parties exchanged expert medico legal reports, whereafter the
matter was set
down on two occasions for trial on the issue of
quantum. The defendant concluded that the plaintiff’s conduct
constitutes
a tacit abandonment of the court order.
[20]
It has been held in
Borstlap
v Spangenberg
[3]
that the tacit abandonment of rights by a party would involve conduct
plainly inconsistent with an intention to enforce the right
now
relied on. It has further been held in
Traub
v Barclays National Bank Ltd
[4]
that it is necessary for the decision to abandon to have been
conveyed to the other party for it to become effective.
[21]
It is common cause on the papers before me that there has been no
express abandonment of the
court order by the plaintiff. The
plaintiff has also at no stage communicated a decision to abandon the
court order to the defendant.
[22]
The plaintiff’s participation in two pre-trial conferences and
his acceptance of the defendant’s
expert medico legal reports
do not constitute sufficient grounds for finding that the plaintiff
has abandoned his rights in terms
of the court order. On the
contrary, the plaintiff’s conduct is consistent with his
evidence that the defendant was involved
in the proceedings for
purposes of exploring the settlement of the plaintiff’s
quantum, which would avoid the need to present
evidence by the
plaintiff in order to prove the quantum of his claim.
[23]
The defendant further relied on estoppel and argued that the
plaintiff represented to her on
several occasions that the
determination of the quantum of his damages would be in a trial in
which both parties would lead evidence.
The defendant submits that
she proceeded to prepare for trial, only to learn at the doorsteps of
the court that the plaintiff intends
to rely on the court order and
that the defendant is therefore non-suited. The defendant contends
that she accordingly acted to
her own detriment.
[24]
It has been held in
Universal
Stores Ltd v OK Bazaars
[5]
that in order to rely on estoppel, the relevant party must show a
representation by words or conduct by the other party of a certain
factual position. Further, the representee must have acted on the
correctness of the facts as represented to his or her detriment.
[6]
[25]
On the facts before me, both parties proceeded to participate in,
inter alia, pre-trial conferences
and the exchange of medico legal
expert reports. It is the plaintiff’s case that the defendant’s
representatives were
engaged for purposes of exploring settlement of
the quantum. This is confirmed by the recordal in the pre-trial
minutes from which
it is clear that the plaintiff still needed to
prove his damages in the absence of an agreement between the parties.
Both parties
participated in the various pre-trial procedures and I
am unable to find that any representations were made by the plaintiff
to
the defendant that the determination of the plaintiff’s
quantum of his damages would be in a trial in which both parties
would lead evidence. Further, even if it is found that the conduct of
the plaintiff constituted such representation, it cannot be
said that
the defendant acted on such representations to her detriment.
[26]
It remains that the defendant did not proceed with her application
for leave to appeal against
the striking out order, and as this order
still exists, she accordingly remains precluded from participating in
the trial.
[27]
The general rule is that the successful party is entitled to his
costs. I find no reason to deviate
from this rule.
[28]
I make the following order:
1.
The application is dismissed with costs.
PIETERSEN
AJ
Date
of hearing:
18 October 2023
Date
of judgment:
26 April 2024
APPEARANCES
Applicant/Defendant:
Mr
Ramdass
Instructed
by:
The
State Attorney
6
th
Floor, Metlife Building
391
Anton Lembede Street
Durban
Ref: Mr
M Ngubane/vp/24/005694/15/S/P18
c/o
Cajee Setsubi Chetty Inc
195
Boshoff Street
Pietermaritzburg
Plaintiff/Respondent
:
Ms Ploos
Van Amstel
Instructed
by:
Malcolm
Lyons & Brivik Inc
Per: T
Brivik
Suite
501, 5
th
Floor
The
Colosseum
3 St
Georges Mall
Cape
Town
(Ref:
TB/al/S255)
c/o
Morne Du Plessis Attorneys
32
Taunton Road
Wembley
Pietermaritzburg
3201
Ref:
01/M016/002/Mdp/sj
[1]
Wilson
v Die Afrikaanse Pers Publikasies (Edms) Bpk
1971 (3) SA 455
(T) at 462H-463A.
[2]
Langley
v Williams
1907
TH 197.
[3]
Borstlap
v Spangenberg en andere
1974
(3) SA 695 (A).
[4]
Traub
v Barclays National Bank Lt; Kalk v Barclays National Bank Ltd
1983
(3) SA 619
(A) at 634G-635D.
[5]
Universal
Stores Ltd v OK Bazaars
1973
(4) SA 747
(A) at 761B-C.
[6]
Absa
Bank Limited v De Klerk
1999
(1) SA 861
(W) at 865G-H.