About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 270
|
|
V.L.J obo A.O.J v Member of the Executive Council for Health - Free State Provincial Government (4469/2023) [2024] ZAFSHC 270 (23 August 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable / Not
reportable
Case no:
4469/2023
In
the matter between
V[
…
]
L[
…
] J[...]
obo
A[
…
] O[
…
] J[
…
]
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH
–
FREE STATE PROVINCIAL
GOVERNMENT
Respondent
Neutral citation:
Coram: Cronje, AJ
Heard: 8 August 2024
Delivered:
23
August 2024
Summary
:
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
– condonation –
section 3(4)
(b)
–
unreasonable prejudice to Sate – requirement not alleged or met
– signature of Applicant suspect – no
medical opinion –
prescription – knowledge of facts – minor’s claim
not prescribed – application
dismissed with costs
ORDER
1.
The application is dismissed.
2.
Each party pays its own costs, including the costs that stood over.
JUDGMENT
Cronje AJ
Introduction
[1]
The Applicant, in her personal as well as her representative
capacity as mother and legal guardian of A[…] O[…] J[…]
(‘the minor’, born on 1[…] A[…] 2010),
instituted action against the Respondent claiming in her
representative
capacity past and future medical expenses in the
amount of R26 190 000.00 (twenty-six million one hundred
and ninety
thousand rand) and R3 000 000.00 (three million
rand) for the minor’s past and future loss of income. In her
personal
capacity, she claims R1 000 000.00 (one million
rand) for ‘
pathological grief reaction with depressed moods
’
and R2 000 000.00 (two million rand) for past and future
loss of earnings. The total amount claimed is R32 190 000.00
(thirty-two million one hundred and ninety thousand rand).
[2]
It
is pleaded that costs will be incurred at an overall percentage of
10% of the capital award for the proper protection and management
of
the award either by means of the appointment of a Curator
Bonis
or
Trustee, the cost of providing security, annual auditing and
ancillary costs. The approach by the SCA in matters of this nature
when it affects minors, is to be found in
Road
Accident Fund v MKM obo KM and Another; Road Accident Fund v NM obo
CM and Another.
0F
[1]
Non-compliance
with the
Institution of Legal Proceedings
Against Certain Organs of State Act
[3
]
It
is common cause that there was no compliance with the Institution of
Legal Proceedings Against Certain Organs of State Act1F
[2]
(the Act). The purpose of the application is to secure condonation
for late notice, as the Respondent filed a special plea to that
effect. The notice of motion was filed in this Court on 25 January
2024 and served on the State Attorney on the same date. In the
notice, dated 4 July 2023, it is
inter
alia
stated
that the Applicant and minor suffered damages and will continue to
suffer damages in the amount of R38 000 000.00
(thirty-eight million rands), which is in contrast to the amount
claimed in the summons. In para 7 of the notice, it is stated
that should the Respondent fail to comply, they hold instructions to
issue summons against the Member of the Executive Council
in the
North West (MEC).
[4]
The
second special plea states that the Applicant’s claim in her
personal capacity arose on 11 April 2010 and that it prescribed
in
terms of the Prescription Act.2F
[3]
It is common cause that the summons was served on the Respondent on
14 September 2023, approximately thirteen (13) years
after the
alleged delict.
The special power of
attorney
[5]
A special power of attorney (SPOA), dated 29 May 2023,
contains two (2) signatures of witnesses, the identities not stated,
and
a signature above the word ‘Client’. It is stated
that she is acting in her personal capacity and in representative
capacity. She nominates the attorneys with power of attorney to be
her lawful attorney and agent in name, place and stead and to
investigate
the circumstances relating to the incident, which
occurred on 11 April 2010 (birth to the minor). She
empowers
the firm to obtain information
from the relevant hospital(s)
and doctor(s) concerning all facts, medical reports, accounts, and
details of the injuries sustained.
She further
authorises
them to ascertain the name of the hospital/clinic responsible, to
sign the necessary claim form
and
to fix the amount of
compensation
claimable for damages in the attorney’s
discretion, to
negotiate settlement
with the Respondent, to
agree with them on figures
for settlement and to
advise
her if it.
[6]
It also states that should she terminate the mandate of the
attorneys, she undertakes to settle their costs of handling the
matter
on attorney and own client scale; to sign any release of
discharge of the amount of the settlement in order to receive and
recover
the amount; and that they may charge her R2 500.00 (two
thousand five hundred rand) per hour for all work to be done in
connection
with the action, including consultations, time spent in
medical research, preparations, drafting, perusals and review of
medical
literature, books of account and other relevant
documentation, and the time spent on telephone calls and travelling.
[7]
Most importantly, the power states:
‘
I understand
that my claim has been dealt with without me incurring or paying
towards the Attorneys and such as my Attorneys will
be entitled to
deduct his/her fees from the capital amount and should thereafter any
costs
be
awarded, such costs shall be paid over to the company Nozuko Nxusani
Incorporated, as their own costs… Insofar as Nozuko
Nxusani
Incorporated will be incurring disbursements and rendering services
without me [making] payment for same as the disbursements
are
incurred and the services are rendered, I irrevocably and
unconditionally authorize Nozuko Nxusani Incorporated as security
for
fees and disbursements, to receive all funds in my name with respect
of capital
.’
I asked Mr Plaatjies, who
appeared for the Applicant, whether this is a mandate or a
contingency fee agreement. My view was, and
his too, without binding
him, that it is a contingency fee ‘
agreement
’.
It is clear that it does not meet the requirements prescribed by the
Contingency Fees Act3F
[4]
.
The grounds for
condonation
[8]
The Applicant attended the MUCPP Health Centre on or about 11
April 2010 to give birth to the minor. It is alleged that the staff
and medical personnel failed to assist her to give birth safely and
timeously and that the minor was born with Apgar scores of
2/10 and
5/10. As a result of the prolonged labour process, the minor was in
distress and suffered a hypoxic brain injury, manifesting
in cerebral
palsy.
[9]
She alleges that she met a former schoolmate in May 2023, who
informed her that she has a cousin who has a child with a similar
condition. She learned that the mother is pursuing a claim against
the Respondent. Initially, she did not want to pursue a claim
but was
convinced to contact one Mr Sifundo Simaya, a legal secretary at
Nozuko Nxusani Attorneys in Johannesburg.
[10]
Mr Simaya allegedly informed her on 29 May 2023 that it was
his opinion that the standard of medical management that she received
at MUCPP and Pelonomi Hospital fell short of the accepted standard of
reasonable care, skill and diligence. He would investigate
the
matter, whereupon she provided the firm with the SPOA. On 4 July
2023, Mr Simaya informed her that he served a notice in terms
of the
Act.
[11]
The requirements for condonation are dealt with in paras 8 and
9 of the founding affidavit. Concerning the degree of lateness and
explanation for it, she states that she is a layperson and has no
knowledge of the law and the processes involving the institution
of a
claim. She would not have been able to know the cause of the
minor’s disability without a professional opinion.
I pause to
state that no affidavit or a report of a medical practitioner or
specialist served as a confirmation of all the allegations
about the
standard required from the medical profession, such as the monitoring
of maternal and foetal well-being, intrapartum
management, maternity
guidelines, poor intrapartum monitoring, or a failure to use a
partogram.
[12]
She
alleges that Mr Simaya explained the elements of negligence which are
attributed to the Respondent in relation to the lengthy
hospitalisation of the minor and the diagnosis of cerebral palsy soon
after birth. She further states that the maternity
case record
attached to the founding affidavit is a complete copy provided by the
Respondent. Should the Court require all
copies of the neonatal
and paediatric clinical notes, they will be made available at the
hearing of the application.4F
[5]
She became aware of all the facts when she consulted with Mr Simaya
during or about 29 May 2023 and 2 October 2023.
[13]
In a document of Pelonomi Hospital, the names of the Applicant
appear with the date of 16 February 2010. Under the heading
‘Hospitalization’,
it states ‘PHCRC P Obstetric
High-Risk Clinic’. On 17 November 2016, the Department of
Paediatrics at Pelonomi Hospital
indicated that the minor suffers
from cerebral palsy but that the aetiology was unknown. It is also
reported that the minor was
born at the MUCPP on 11 April 2010 and
that the gestation period was 41 weeks.
[14]
A maternity case record is appended to the founding affidavit.
Clinical notes dated 10 February 2010 at 18h15 stated that the
patient
is 20 years old and has primigravida at 38 weeks. The record
does not show any particulars of the Applicant herself.
Innumerable
blank pages are appended. It cannot, in itself, be
accepted that no duties were complied with.
[15]
Attached to the founding affidavit is,
inter alia
, a
confirmatory affidavit of Mr Simaya, who merely states that he is the
legal secretary dealing with the matter. He confirms the
contents of
the founding affidavit in as far as it relates to him. He does not
profess to have any medical training, experience
or background.
[16]
With
respect to the importance of the matter, she states that she is
unemployed and that the full-time care of the minor is a burden
on
her and the rest of her family. Unless she succeeds with the
matter, she will have to continue caring for the child with
significant
sequelae
at her own expense and limited resources to ensure that she develops
to her full potential.5F
[6]
[17]
No allegations were made regarding the third critical
requirement for condonation in the Act, to wit that the organ of
state has
not been unreasonably prejudiced by the failure to comply
with the Act.
Prescription
[18]
It is common cause that the minor's claim has not been
prescribed.
The Respondent’s
opposition
[19]
The Respondent states that the Applicant failed to show that
the Respondent will not suffer unreasonable prejudice. The
requirements
of
s 3(4)
of the Act are peremptory, and all must be
present before condonation may be granted. The Applicant's
claims in her personal
capacity have been extinguished by
prescription. No records were provided to Mr Simaya on 4 July
2023, and there is no explanation
of how he managed to furnish the
statutory notice.
[20]
The medical records attached by the Applicant do not correlate
with those in possession of the Respondent and are incomplete. The
record shows that on 9 May 2010, approximately a month after the
birth, the minor was admitted with respiratory distress and HIE
grade
1-2. The records of 29 October 2015 indicate that the minor was a
known cerebral palsy (CP) patient and that the Applicant
was well
informed. In notes of 9 November 2015, the Applicant provided a
history. Physiotherapy and occupational therapy appear
to have been
provided to the minor as indicated in records of 18 January 2017.
Notwithstanding being aware of the minor’s
challenges, the
Applicant was remiss to take steps to institute action. Her own
claims have prescribed.
[21]
The
Applicant’s signature is challenged with reference to her
identity card and the signature on the founding and replying
affidavits. The Respondent takes issue with the signature on the
SPOA. It states that there are similarities between the signatures
of
Mr Simaya in the power of attorney, purporting to be that of the
client, and his confirmatory affidavit.6F
[7]
[22]
This
challenge to the signatures was not met with a reply.7F
[8]
The SPOA limits the attorney’s ability to act on specific,
identified activities and does not authorise the institution of
the
action or to bring the application. It attaches a report of an
investigation that was done in the Northern Cape Province into
the
conduct of Mr Simaya, specifically. I pause to state that the
report is concerning but is not determinative for this
application.
No medical opinion supported the claim. Mr Simaya is not medically
qualified.
[23]
I
noted that the Applicant did not reply to paras 4 to 34 of the
Respondent’s answering affidavit.8F
[9]
Those paragraphs in the answering affidavit deal
inter
alia
with the lack of authority, the lack of evidence of prolonged labour,
the knowledge of Mr Simaya, the signature of the Applicant,
the
records provided to Mr Simaya, the failure to comply with all the
requirements for condonation, the alleged substandard management
and
monitoring of the Applicant in labour, that no professional opinion
was provided, the difference in the records of the Department
and
those attached to the affidavit of the Applicant, the lack of
prospects for success, and that no basis for condonation was
laid.
Arguments
[24]
Mr
Plaatjies, who appeared for the Applicant, submits that the damages
suffered by the Applicant in her capacity commenced when
she became
aware of the debtor's identity and possession of full knowledge of
the facts from which the debt arose.9F
[10]
She only learned of the facts on 29 May 2023. She is a layperson and
obtained advice from her legal representatives.
[25]
The
Respondent bears the onus to show that her personal claims
prescribed. He
inter
alia
relies on
Loni
v Member of the Executive Council, Department of Health, Eastern
Cape, Bhisho,
10F
[11]
where
it was held:
‘
[34] When
the principle in Links is applied to the present facts,
the
applicant should have over time suspected fault on the part of the
hospital staff
.
There
were sufficient indicators that the medical staff had failed to
provide him with proper care and treatment
,
as he still experienced pain and the wound was infected and oozing
pus.
With that experience, he
could not have thought or believed that he had received adequate
medical treatment
. Furthermore,
since he had been given his medical file, he could have sought advice
at that stage. There was no basis
for him to wait more than
seven years to do so.
His
explanation that he could not take action as he did not have access
to independent medical practitioners who could explain to
him why he
was limping or why he continued to experience pain in his leg, does
not help him either. The applicant had all
the necessary facts,
being his personal knowledge of his maltreatment and a full record of
his treatment in his hospital file,
which gave rise to his claim.
This knowledge was sufficient for him to act
.
This is the same information that caused him to ultimately seek
further advice in 2011.
[35] It is clear,
that long before the applicant’s discharge from hospital in
2001 and certainly thereafter, the applicant
had knowledge of the
facts upon which his claim was based.
He had knowledge of
his treatment and the quality (or lack thereof) from his first day in
hospital
and had suffered pain on a continuous basis subsequent
thereto. The fact that he was not aware that he was disabled or
had
developed osteitis is not the relevant consideration.’ (My
emphasis.)
[26]
As I
stated above, Mr Simaya is not a medical specialist. The basis for
the conclusions that the Respondent, through its employees/agents,
was negligent is, as the papers stand, at best, speculation and not
informed by objective facts or medical opinion. Considering
her
averments in the founding affidavit, she could have obtained medical
advice earlier.11F
[12]
[27]
He
also refers to
MEC
for Health, Eastern Cape v N H obo A
.12F
[13]
As I read the judgment, there is a major difference between the facts
there and the matter before me. In that matter,
there
was a
medical
report by Dr Mugerwa-Sekawabe, a specialist obstetrician and
gynaecologist who reviewed the Plaintiff’s medical records
from
the hospital and consulted with her, which was not the case before
me.
[28]
Mrs Williams SC, who appeared for the Respondent, takes issue
with various aspects contained in the founding affidavit,
among
other things
the authority of the attorney, prescription of the
Applicant’s claim in her personal capacity, the delay being
unreasonable,
failure to explain the delay to bring the condonation
timeously, lack of good cause and failure to demonstrate that the
Respondent
will not suffer unreasonable prejudice.
[29]
She
relies on
Ganes
and Another v Telecom Namibia Ltd.
13F
[14]
where
the authority of the deponent and the attorney was challenged. The
attorney's affidavit confirmed his authority. As stated
above, the
Applicant did not meet the challenge to her signature or the import
of the SPOA. I attempted to read and interpret the
SPOA as
benevolently as possible but could not find that reliance can be
placed on the signatures or that it covers the actions
taken by the
attorneys.
[30]
She
submits that although
Section 3(4)
of the Act provides the Court with
the discretion to grant condonation, all three requirements must be
met. They are conjunctive
and must be established by the
Applicant. In
Minister
of Safety and Security v De Witt
14F
[15]
it
was held
:
‘
[13]
The discretion may only be exercised, however, if the three criteria
in
s
3(4)(b)
are met: that the debt has not been extinguished by
prescription (at issue in this case); that good cause exists for the
creditor’s
failure; and that the organ of state has not been
unduly prejudiced, It is an overall impression which must bring a
fair mind to
bear on the facts alleged by the parties.
Only
once the Court is satisfied that all requirements have been met,
condonation can be granted
.’
(My emphasis.)
[31]
She refers to paragraph 7.8 of the founding affidavit where it
is alleged that:
‘
On or about 11
th
April 2010, the Applicant attended at MUCPP Health Centre in order to
give birth to her minor child A[…] O[…] J[…].
The nursing staff and medical personnel failed to assist her to give
both safe and timeously, the minor child was born with low
Apgar
score of 2/10 and 5/10 and was experiencing difficulty breathing.’
Mrs Williams argues that
those facts were known in April 2010, and prescription started
running against the Applicant in her personal
capacity.
[32]
Regarding
good cause, she relies on
Madinda
v Minister of Safety and Security, Republic of South Africa
.15F
[16]
The Applicant was fully aware of the minor’s disability and
underwent regular treatment shortly after birth. She knew who
the
debtor was. The medical records do not show any causal negligence.
The Applicant has not shown that the Respondent will suffer
unreasonable prejudice, which is a lower standard than mere
prejudice. The Applicant has to satisfy the Court on this
requirement.
In this regard, reference is made to
Mohlomi
v Minister of Defence.
16F
[17]
She submits that the Respondent does not dispute the well-being of
the minor but it should not, in the circumstances, outweigh
the
multiplicity of factors that the Respondent highlighted in opposition
to her relief sought.
Discussion
[33]
I am not satisfied that the Applicant signed the affidavits
and SPOA. I do not have to be an expert to see the apparent
difference.
It was easy for the Applicant to assure the Court that
she signed. She did not.
[34]
Various
material allegations were addressed in the answering affidavit to
which the Applicant did not reply. Following
Plascon
Evans v Van Riebeeck Paints
,17F
[18]
I have to accept the Respondent's version to the extent that the
Applicant cannot deny it. The averments about, among other things,
medical opinions or reports did not support medical negligence and
failure to comply with proper care. I do not accept that the
attorneys for the Applicant have the necessary qualifications,
experience or skill. The averments in the founding affidavit do
not
even meet the bar of hearsay.
[35]
The Applicant did not meet the third requirement for
condonation. Bearing the history of the matter in mind, the time that
passed
and serious allegations regarding the way the medical records
may have been obtained, I am left with no alternative but to find
that the requirements were not all met.
[36]
Dismissal of the application does not infringe on the rights
of the minor. At face value, the minor will never be able to litigate
herself. On the other hand, I cannot find that the Applicant’s
claim did not prescribe. She must have been able to relay
the
occurrences during birth earlier.
[37]
Accordingly, I find that the requirements for condonation have
not been met.
Costs
[38]
I believe that interrogating the conduct of the attorneys,
more specifically that of Mr Simaya, if they were ever empowered to
prosecute
it, will not be helpful. The Applicant and the minor have
remedies against the attorneys if the SPOA does not comply with the
Contingency
Fees Act, which at face value does not.
[39]
Making an order of costs against the Applicant and,
effectively, against the minor would, under these circumstances, be
unfair.
I am of the view that justice requires that each party pays
its own costs.
ORDER:
[40] In the result, the
following order is made:
1.
The application is dismissed.
2.
Each party pays its own costs, including costs that stood over.
CRONJÉ, AJ
Appearances
For
the Applicant:
Adv.
N Plaatjies
Instructed
by:
Nozuko
Nxusani Inc.
Eugene
Attorneys
Bloemfontein
For
the Respondent:
Adv.
R.T. Williams SC
Adv
L Tlelai
Instructed
by:
State
Attorney
Bloemfontein
[1]
Road
Accident Fund v MKM obo KM and Another; Road Accident Fund v NM obo
CM and Another
[2023] ZASCA 50
;
[2023] 2 All SA 613
(SCA).
[2]
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002.
[3]
Prescription Act 69 of 1969
.
[4]
Contingency Fees Act 66 of 1997
.
[5]
Para 11.4.
[6]
Para 12.2.
[7]
Pleadings at 21 and 55.
[8]
Record at 99, para 12.
[9]
Record, p. 67 – 76; p. 99 – 100.
[10]
Section 12(3)
of the
Prescription Act, 69 of 1969
.
[11]
Loni
v Member of the Executive Council, Department of Health, Eastern
Cape, Bhisho
[2018]
ZACC 2; 2018 (3) SA 335 (CC); 2018 (6) BCLR 659 (CC).
[12]
Pleadings, p. 7, par 7.6 and p. 10, par 11
[13]
MEC
for Health, Eastern Cape v N H obo A
[2022]
ZASCA 181.
[14]
Ganes
and Another v Telecom Namibia Ltd
[2003]
ZASCA 123
;
[2004] 2 All SA 609
(SCA);
2004 (3) SA 615
(SCA); (2004)
25 ILJ 995 (SCA).
[15]
Minister
of Safety and Security v De Witt
[2008]
ZASCA 103; 2009 (1) SA 457 (SCA).
[16]
Madinda
v Minister of Safety and Security, Republic of South Africa
[2008]
ZASCA 34
;
[2008] 3 All SA 143
(SCA);
2008 (4) SA 312
(SCA) paras 10
and 12.
[17]
Mohlomi
v Minister of Defence
[1996]
ZACC 20
;
1996 (12) BCLR 1559
;
1997 (1) SA 124
para 11.
[18]
Plascon
Evans Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A).