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[2024] ZAECBHC 22
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S.N obo I.N v MEC for the Department of Health (170/2021) [2024] ZAECBHC 22 (3 September 2024)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – BHISHO)
Reportable/
Not
Reportable
Case no.:170/2021
Matters heard on: 29
August 2024
Judgment delivered on:
03 September 2024
In
the matter between:
S[...]
N[...] obo I[...]
N[...]
Plaintiff/Respondent
and
THE
MEC FOR THE DEPARTMENT OF HEALTH
Defendant/Excipient
JUDGMENT
BRODY
AJ
1.
The applicant, Ms S[...] N[...] (“Ms N[...]”) is an
unemployed mother
of I[...] N[...] (“the minor child”)
who resides in Nxanxase Administrative Area, Willowvale, Province of
the Eastern
Cape.
2.
Ms N[...] stated the following in her founding affidavit, which is
relevant to
her sophistication:
“
57.
As previously stated I am a lay person. I was not aware of the
niceties of civil litigation and of the
technical notice requirements
stipulated in the Act and when it is intended to institute legal
proceedings against Organs of State
such as the respondent.
58.
I did not have any knowledge in respect of the potential claim which
I[...] and I had against
the respondent, nor did I have the necessary
information and facts to establish whether we did in fact have such a
claim, or the
knowledge of the specific Organ of State against which
a potential claim might lie.”
3.
It is also clear from the various affidavits filed that the plaintiff
had a nomadic
life and moved from one area to the other in
circumstances where her attorneys found it difficult to contact her
from time to time.
4.
Ms N[...] had a difficult pregnancy and was initially admitted to a
clinic, and
thereafter, the Butterworth Hospital on the 17
th
of March 2007. On or about the 20
th
of March 2007, the
minor child was born and it was only much later that Ms N[...]
observed that the minor child’s development
was not normal in
that she was “
unable to sit”
, “
had
ongoing lower respiratory track infection”,
but “
did
not speak at all”
and she was required to take the minor
child to clinics as the years passed.
5.
At the age of 13, the minor child still could not sit and was
constantly on nappies
24 hours a day.
6.
During 2020, the applicant met a young lady from her neighbourhood
who advised
her that there was the potential of a claim by her, on
behalf of the minor child, against the State. She was provided with
the
landline number of an attorney in East London by the neighbour.
7.
On or about 15 July 2020 Ms N[...] called the offices of the
attorneys to arrange
a consultation and this was done for the 20
th
of July 2020.
8.
Ms N[...] admitted the following in regard to the initial contact
with an attorney:
“
31.
On or about 15 July 2020, I called the offices of my attorneys of
record herein to arrange a consultation.
However, due to my
attorney’s busy schedule, I was advised that the earliest date
upon which a consultation could be scheduled
was the 20
th
of July 2020.”
9.
This attorney arranged for Ms N[...] and the minor child to see a
Gynaecologist
and Obstetrician in Pretoria (“the expert”)
and this was arranged for the 27
th
of October 2020.
10.
On the 9
th
of November 2020 Ms N[...]’s attorney
received the report from the expert and the finding was as follows:
“
Conclusion
-
the insult to the brain was preventable at the time of labour;
-
emergency caesarean section should have been done;
-
the final assessment on the child and the difficulties of raising
such a child should be done by a paediatrician;
-
the amount of emotional and psychological burden suffered by the
mother should be assessed by a clinical psychologist.”
11.
On the 14
th
of December 2020 Ms N[...]’s attorney
delivered a section 3(2) notice in terms of Act 40 of 2002 and a
summons was issued
on the 4
th
of March 2021.
12.
The matter was defended by the Member of the Executive Council for
the Department of Health
of the Eastern Cape Province (“the
defendant”) and on the 22
nd
of October 2022 a plea
was served and filed. In the plea, the defendant raised a special
plea of non-compliance with section 3(2)
of the Act.
13.
Section 3(4) of the Act reads as follows:
“
3(4)(a)
If an Organ of State relies on a creditor’s failure to
serve a
notice in terms of sub-section (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 –
(i)
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.”
14.
It was common cause in the matter that the claim by the plaintiff in
her personal capacity,
and on behalf of the minor child, had not
prescribed, no such claim of prescription was contained in the plea.
15.
A fact which complicates this application for condonation is that Ms
N[...] failed to mention
in her founding affidavit that she had in
fact instructed another firm of attorneys, namely TA Nkele and Sons
as far back as 2018.
A copy of a letter addressed by that firm to the
defendant was attached to the answering affidavit and which requested
information
in terms of the
Promotion of Access to Information Act No
2 of 2000
. No mention was made of the approach to this firm of
attorneys and no mention was made of the fact by Ms N[...] that she
had signed
a special power of attorney when she initially consulted
these attorneys.
16.
The special power of attorney, which was signed by Ms N[...] in
November 2018, was attached
to the answering affidavit of the
defendant. This special power of attorney indicates that Ms N[...]
had instructed her attorneys
to obtain all the required information
from the Department of Health in the Eastern Cape “
for the
medical negligence by the Butterworth Hospital and institute legal
proceedings to obtain same… and on the basis thereof
institute
an action for medical negligence against the Eastern Cape Department
of Health.”
17.
It went further to authorise the attorneys to pay all fees to counsel
and witnesses and
to do everything necessary to pursue such a claim.
18.
In Ms N[...]’s replying affidavit she sought to explain away
the visit to TA Nkele
and Sons on the basis that contact between her
and her attorneys was very difficult and that, in any event, the
prescriptive period
of the claim only began to run on the 9
th
of November 2020, when her subsequent attorneys obtained the expert
report.
19.
In the matter of
Mulaudzi vs Old Mutual Life Insurance Company
(South Africa) Limited and Others
2017(6) SA 90 (SCA) Ponnan JA,
in a majority judgment, dealt with the issue of delays when
condonation is sought. The following
was stated at paragraph 26:
“
What calls for
an explanation is not only the delay in a timeously prosecution of
the appeal, but also a delay in seeking condonation.
An appellant
should, however he realises that he has not complied with the rules
of this court, apply for condonation without delay.
A full detailed
and accurate account of the cause of the delay and their effects must
be furnished so as to enable the court to
understand clearly the
reasons and to assess the responsibility. Factors which usually weigh
with this court in considering the
application for condonation
include the degree of non-compliance, the explanation therefore, the
importance of the case, a respondent’s
interest in the finality
of the judgment of the court below, the convenience of this court and
an avoidance of unnecessary delay
in the administration of justice.”
20.
He went further and stated the following:
“
[33]
Mr Mulaudzi’s application demonstrates an obvious lack of
attention to matters that plainly called
for an explanation and
evidences a failure to fully and candidly enlighten the court, as an
applicant in the matter such as this
was obliged to do. I thus find
it impossible to hold that the delay in bringing this application has
been explained in a manner
that is remotely satisfactory.
[34]
In applications of this sort, the prospects of success are in general
and important, although
not decisive considerations. As was stated in
Rennie vs Camy Farms (Pty) Ltd
, it is advisable,
where an application for condonation is made, that the application
should set forth briefly and succinctly such
essential information as
may enable the court to assess an applicant’s prospects of
success.
This was not done in the present case: Indeed, the
application does not contain even a bare averment that the appeal
enjoys any
prospect of success. It has been pointed out that the
court is bound to make an assessment of an applicant’s
prospects of
success as one of the factors relevant to the exercise
of his discretion, unless the cumulative effect of the other relevant
factors
in the case is such as to render the application for
condonation obviously unworthy of consideration.
[35]
In my view, the circumstances of the present case is such that we may
well have been entitled
to refuse the application for condonation
irrespective of the prospects of success. This court has often said
that in cases of
flagrant breaches of the rules, especially where
there is no acceptable explanation therefore, the indulgence of
condonation may
be refused whatever the merits of the appeal. Here,
the delay is so unreasonable and their explanation offered so
unacceptable
and wanting that we may well have been justified in
adopting that cause.. …
”
21.
In
Uitenhage Local Council vs South African Revenue Service
2004(1) SA 292 (SCA) Heher JA held that condonation was not to be had
merely for the asking. A full, detailed and accurate account
of the
causes of the delay and their effects had to be furnished so as to
enable the court to understand clearly the reasons and
to assess the
responsibility. It had to be obvious that if the non-compliance was
time-related then the date, duration and extent
of any obstacle on
which reliance was placed had to be spelt out.
22.
Heher JA also stated the following:
“
[9]
It is apparent that not only was the affidavit in support of the
application seriously inadequate
but it was also misleading in
relation to the date on which the appeal had lapsed and the awareness
of the importance of 14 November
on the part of the appellant’s
attorneys both before and after that date…”
23.
In
Darries vs Sheriff: Magistrate’s Court, Wynberg and
Another
1998(3) SA 34 (SCA) the court held that even if an
attorney was the reason for any delay, the litigant could not shield
behind
the attorney’s actions.
24.
There are two principles that are relevant to applications for
condonation. The first is
a full explanation for the delay in acting
in terms of a statute and, secondly, to bring the application for
condonation as soon
as the party becomes aware of the fact that
non-compliance is being relied upon by the defendant, (and
condonation is necessary).
25.
In this matter, the special plea relating to the
section 3
notice was
served and filed on the 20
th
of October 2022 and no
explanation is given by Ms N[...], or her legal representatives, why
it took almost one and a half years
to bring the application for
condonation, only on the 14
th
of February 2024.
26.
It is also trite that a court must have regard to the prospects of
success in the action
proceedings in deciding on condonation.
27.
Mr Ndamase, on behalf of Ms N[...], argued that there was no
prejudice to the defendant
in that the defendant was able to
comprehensively file a plea and was in possession of medical records.
In his view, the plaintiff
had strong prospects of success for her
personal claim and that for the minor child. He further argued that
because prescription
was not an issue, there could be “
no
prejudice”
to the defendant.
28.
He did, however, argue that if the application was dismissed, the
Biowatch principle was
applicable and that a costs order should not
follow the result.
29.
Mr Pitt argued that the period of thirteen years was not a reasonable
period, however, conceded
that prescription was not raised in the
plea on behalf of the defendant.
30.
He further argued that the medical records have been compromised as
certain of them had
been “cut off” as evidenced in the
limited discovery that has taken place, to date.
31.
He properly conceded that, on any version, the minor child’s
claim has not prescribed.
He further argued that the Ms N[...]’s
personal claim could be dealt with separately from the minor child’s
claim,
as they were two distinct claims.
32.
Ms N[...]’s personal claim is pleaded as follows:
“
13.
As a result of the aforesaid wrongful and negligent conduct, of the
injury, and the sequelae thereto,
suffered by her child I[...], the
plaintiff:
13.1
experienced severe psychological shock and trauma and will continue
to experience such shock and trauma in
future on a permanent basis as
a result of the mental anguish, distress and difficulties of giving
birth to a severely impaired
child and of being required to care for
such a child with global development epilepsy, and gross motor, fine
motor, social/personal
and communication delays;
13.2
will require and will undergo psychiatric treatment and psychological
counselling in future, the details
such are known appear in addendum
“B” hereto;
13.3
has suffered and will suffer in future a loss of amenities of life in
consequence of the need for the plaintiff
to care for a child with
global developmental delay with epilepsy, and gross motor, fine
motor, social/personal and communication
delays for the remainder of
the child’s life.”
33.
The plaintiff’s personal claim is one for R900 000.00
which is pleaded as follows:
“
17.
In the premises, the plaintiff in her personal capacity has suffered
damages in the total sum of R900 000.00,
which sum is calculated
as follows:
17.1
General damages -
R800 000.00
17.2
Pre-estimated cost for psychological
counselling and
psychiatric
treatment
-
R100 000.00
Total
R900 000.00
”
34.
As set out in the abovementioned authorities, Ms N[...] has not been
frank and candid with
this court in that she failed to mention the
earlier visit that she had with TA Nkele Attorneys and failed to deal
with the advices
given by those attorneys to her, which resulted in
the special power of attorney, and the letter addressed by the
attorneys to
the defendant. There can be no doubt, arising out of the
special power of attorney, that Ms N[...] must have been advised of a
claim that she had against the Butterworth Hospital, as the special
power of attorney talks about medical negligence by the Butterworth
Hospital, in terms. It also talks about the institution of legal
proceedings for negligence against the Department of Health.
35.
I am disinclined to grant condonation for the
section 3
notice in
respect of Ms N[...]’s personal claim.
36.
The claim for the minor child is, however, entirely different. The
minor child is an innocent
party who is unable to deal with her claim
and relies heavily on her mother, Ms N[...], and the legal
practitioners.
37.
I take into account that the minor child’s claim has good
prospects of success, based
on the expert’s report, and that
there can be no prejudice to the defendant.
38.
In addition to the difficulties that Ms N[...] faces with her failure
to mention the attorneys
she saw two years before the present
attorneys, there is also the clear delay of only proceeding with the
application for condonation
almost one and a half years after the
special plea was served and filed, after the issue of condonation was
raised.
39.
The authorities referred to above make it clear that condonation
should be sought as soon
as possible and any delays in bringing an
application for condonation should set out fully the reasons for the
delay.
40.
Finally, I am persuaded that this court, as upper guardian of the
minor child should, where
possible, act in the best interests of that
minor child.
41.
I am accordingly not persuaded to grant condonation for the delays in
the
section 3
notice for the plaintiff’s personal claim,
however, am persuaded to grant condonation for the minor child’s
claims
and principally for the following reasons:
41.1
This court is the upper guardian of the minor child;
41.2
The minor child’s claim has good prospects of success based on
the expert report;
41.3
The minor child cannot be faulted at all for the various delays;
41.4
There is no prejudice to the defendant in regard to preparation for
trial and no such prejudice was raised
in the opposing affidavit;
41.5
Prescription is not relevant; and
41.6
The personal circumstances of the minor child’s mother, who is
uneducated, from a previously disadvantaged
background, and
unsophisticated.
42.
Although serious consideration was given to ordering that the costs
of the application be
costs in the main action proceedings, I am
persuaded that, in the interests of the minor child, and her
prospects of completing
the litigation expeditiously, and to
finality, that a costs order should follow the result in respect of
the notice relating to
the minor child’s claim.
43.
In the result, the following order is granted:
43.1
The applicant’s non-compliance with the provisions of section
3(2) of the Institution of Legal Proceedings
Against Certain Organs
of State Act, Act 40 of 2002 (“the Act”), is not condoned
in respect of the applicant’s
personal claim.
43.2
The applicant’s non-compliance with the provisions of section
3(2) of the Act in respect of the minor
child, I[...] N[...], is
hereby condoned in terms of section 3(4) of the Act.
43.3
That it is declared that the applicant has complied with section
3(2)(a) of the Act in respect of the minor
child only.
43.4
That the costs of this application be paid by the respondent on a
party and party basis, on scale B, as set
out in rule 69(7).
B.B. BRODY
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Plaintiff/Respondent
:
Adv. Ndamase
Instructed
by
:
N Tyatyeka Attorneys
c/o
Bululu Nabo & Xaso Attorneys
180
Buffalo Road
KING
WILLIAM’S TOWN
(Ref.:
NIT/WILL01/MED2020-S N[...])
Counsel
for the
Defendant/Excipient
:
Adv. Pitt
:
The State Attorney
c/o
Shared Legal Services
Office
of the Premier
32
Alexander Road
KING
WILLIAM’S TOWN
(Ref.:
278/21 – P3 (Mr Mgujulwa)